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Municipal Liability as Employer Under OHSA

Municipal Liability as Employer Under OHSA

July 14, 2021

By Brian Babcock

Owners, constructors, employers, supervisors and workers all have different roles and responsibilities under the Ontario Occupational Health and Safety Act (OHSA). The more hats you wear, the more potential there is for liability.

What might surprise some municipal leaders is the extent of a municipality’s exposure as an employer.

This was illustrated in an Ontario Court of Appeal decision involving the City of Greater Sudbury.

A woman was killed after being struck by a road grader performing repairs at an intersection in downtown Sudbury. The operator of the grader was an employee of an independent contractor hired by the City to perform the repairs. The City had inspectors who it employed present at the work site.

The City was charged with breaches of the OHSA as both a “constructor” and “employer”. The trial judge found that the lack of a signaller and the absence of a fence were both breaches of the Regulations, but that the City was neither a constructor nor an employer under the OHSA, and thus was not responsible for the breaches. This was upheld at the first level of appeal to Superior Court. The Court of Appeal considered only the definition of “employer”.

The court began by noting that the OHSA is “public welfare legislation”. This means that the Act must be interpreted broadly and liberally to protect employees. The Act contemplates the presence of multiple employers in a work place. Each employer is responsible for OHSA compliance on the work site, not just regarding their own employees.

There is an exemption in the definitions which prevents an owner from becoming a “constructor” simply by employing quality control personnel on site, but, crucially, this does not exempt the City from liability as an “employer”.

Once the City is an employer, it takes on those responsibilities under the Act. Hiring an independent contractor may not result in avoiding liability – that question will be answered based upon the facts of each case at the “due diligence” stage of the argument.

This broad definition is likely to result in more charges against municipalities, and municipal budgets must reflect this risk. Risk managers and contract drafters will also want to review agreements to ensure that the responsibilities under the OHSA are clearly delineated, and that due diligence is performed. The difficulty here is that the Sudbury case does not give guidance on what that due diligence must look like. That remains to be determined in a later case.

Until then, the risk is significant.