Casual Legal: An employer by any other name may still have OHS obligations

By Anthony Purgas
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Casual Legal summarized the Ontario Court of Appeal decision in R. v. Greater Sudbury (City), 2021 ONCA 252, in January 2022 in this article – “When is a municipality an employer for the purposes of OHS?”

The City of Sudbury was held liable for the death of a woman who was struck by road grader operated by a contracted employee. In its appeal, The City claimed that since it exerted no control over the employees of the contractor, it should not be liable as an “employer” under the Ontario Occupational Health and Safety (OHS) legislation. The Ontario Court of Appeal disagreed.

The Supreme Court of Canada, in an unusual plurality (rather than majority) decision, dismissed the appeal, which resulted in the municipality being liable under the Ontario OHS legislation. This decision was based on the specific language of the Ontario OHS legislation. However, such a broad definition of “employer” to include owners has created significant concerns that municipalities in other jurisdictions may be subject to liability for the actions of its contractors.

Ontario's legislation defines an “employer” as “a person who employs one or more workers or contracts for the services of one or more workers…”. Alberta's legislation uses a different definition – “a person who employs or engages one or more workers.” Nevertheless, it appears the same logic would apply. Namely, a municipality could be considered an owner and an “employer” of a contractor for the purposes of the Alberta OHS legislation.

The Supreme Court of Canada focused on the policy purposes behind OHS legislation to ensure that multiple parties may have overlapping duties imposed on them. This is known as the “belt and braces” strategy. The Alberta legislation explicitly adopts this approach in section 12 (Multiple Obligations). Although that section does create relief on multiple parties fulfilling the same obligations, it only does so while the party in charge of that OHS obligation is in compliance.

Despite the foregoing, it is less likely that a similar situation as what had happened to the City of Sudbury would befall a similarly-situated municipality in Alberta. The reason for this is that the duties of employers listed in the Ontario legislation were not as circumscribed as those in Alberta. In Ontario, the employer “shall ensure” the measures set out in the OHS legislation were carried out in the workplace. In Alberta, the employer’s duty is also to “ensure” but this is qualified by “as far as it is reasonably practicable” to do so. The Supreme upheld the finding that, under the OHS legislation, an employer could be found liable even without effective control over the worksite. The inclusion of “reasonably practicable” in the Alberta legislation means that this outcome is less likely. As a result, this allows municipalities to use contractual relationships to shape what is reasonably practicable by delegating authority to a prime contractor, and having a mechanism to monitor OHS compliance by that prime contractor through inspection or regular reporting in order to avoid potential liability under the Multiple Obligations section discussed above.

The Supreme Court of Canada’s endorsement of the Ontario Court of Appeal’s approach continues a theme of expanding interpretation of OHS legislation to ensure that Courts have broad authority to address unsafe workplaces and hold multiple parties accountable. Municipalities should ensure their contracts and tenders deal effectively with safety obligation or they may be held liable for the actions of their contractors.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.