Resources & Insights

Occupational Health and Safety in the Construction Industry

Employers have several responsibilities and obligations when it comes to keeping their employees safe under occupational health and safety law. This is especially so in dangerous workplaces, such as on a construction worksite. You might remember the iconic photo from 1932 of eleven steel workers eating their lunch atop a steel beam some 70 floors high in New York City. Although representing much more, this photo depicts the dangers that construction workers expose themselves to. It is very important that employers and constructors are aware of and understand the duties that they have when it comes to workplace safety so that the project can be completed safely. Unfortunately, accidents will inevitably occur, and so it is also important to understand the potential liability that employers are exposed to when it comes to occupational health and safety in the construction industry.

Ontario’s Occupational Health and Safety Act (“OHSA”) and its sector-specific regulations are designed to promote health and safety and prevent injuries in the workplace by outlining various parties’ obligations and by creating penalties for non-compliance. The OHSA distinguishes between “employers” and “constructors.”  A constructor is a person who undertakes a project for an owner. Most often, the constructor is the general contractor who takes control over the whole project. An employer, on the other hand, is any person who employs or contracts for the services of one or more workers and includes a contractor or subcontractor. Both employers and constructors have duties under the OHSA. The distinction is important because a constructor has broader obligations to ensure that the measures and procedures under the OHSA are followed on the worksite and that the health and safety of all workers are protected, not just those of its direct employees. An employer has more specific duties owed to workers such as making sure that equipment is provided in good condition and used as prescribed and that information, instruction, and supervision is given.

Even when appropriate safety measures are taken, accidents can still occur. In some instances, regulators may choose to prosecute an employer or a constructor for an OHSA violation. Prosecution under the OHSA can result in serious consequences. Recently in Ontario, the maximum penalties for some offences have increased. In fact, a corporation and its officers and directors can be fined up to $1.5M. Courts have interpreted this change as signaling that legislators intended that these offences be treated more seriously than they have been in the past and that higher fines should be imposed (R v Hoyeck, 2021 NSSC 178). Additionally, sentences of incarceration can also be imposed (Ontario v New Mex Canada, 2019 ONCA 30) as well as criminal charges. Due to the nature of the work, OHSA enforcement is much stricter for construction matters. Regulators tend to look more broadly for liability and more individuals, such as supervisors, officers, and directors, tend to be charged.

In an OHSA prosecution, it is usually simple to establish that an offence has been committed. This is because most offences are “strict liability” offences, which means that the prosecution only needs to establish that an offence was committed – there is no need to show intent. Once it has been established that a defendant has committed an offence, the defendant must show that they took every precaution that was reasonable in the circumstances to avoid liability. This is called the due diligence defence. The question is what a reasonable person would have done in the circumstances. Important considerations include industry standards, the relevant legislation, required licenses, training programs, risk assessments, alternative methods of performing the task, and promptness in responding to the problem. It is not enough that safety policies and procedures exist; they must also be consistently communicated and enforced (Ontario v Vixman Construction Ltd, 2019 ONCJ 955).

In the construction industry especially, ongoing assessment, communication, training, and documentation of risks coupled with ongoing supervision and enforcement of safety infractions is the best practice. In Vixman Construction, the defendant had fall arrest procedures and safety policies in place. However, the Court found that the defendant did not enforce these policies and procedures. The Court held that despite the worker’s failures, misconduct, or recklessness, an employer still must be “vigilant in the strict application, monitoring, compliance and enforcement” of its safety guidelines. The defendant had not been vigilant and could therefore not establish due diligence.

If the defendant can demonstrate that they took every reasonable precaution in the circumstances, then they will not be liable for the damages. This is why it is crucial that employers and constructors understand their obligations and the potential liability they are exposed to. Hopefully a situation where this becomes a concern will never arise, but it is important to obtain legal advice so that you are prepared just in case an accident does occur.

If you or your company has been involved in a workplace accident at a construction site, we encourage you to immediately seek counsel to assist you in navigating this very complex and important area of law as the potential ramifications can be significant.

Written by Nicolas Guevara-Mann