Construction and employment updates

October 16th, 2012 by Laura Bowman

Many of our clients blend the roles of developer, owner and employer in construction projects.  For those of you who wear these hats, there are some updates in the law that might interest you.

 1)      Changes to WSIB insurance requirements for construction contractors

The Workplace Safety and Insurance Board has just released an extension to the compulsory coverage requirements for the construction industry here.  Under the new policy every independent operator and sole proprietor, executive officer, and partner carrying on business in construction, who is otherwise not exempt under this policy, is a deemed worker under the Workplace Safety and Insurance Act.  Some exemptions remain for home renovation work.

For owners and developers, the new policy provides that a person who directly retains a contractor or subcontractor to perform non-exempt work in construction is required to obtain a WSIB certificate of clearance prior to commencement of the work and for the entire time the contractor or subcontractor is performing the work.

2)    Occupational Health And Safety case convicts owner/employer for unsafe building where no worker injured.

In an Ontario Court of Justice case, Justice Epstein held that the provisions of the Occupational Health and Safety Act (OHSA) could be contravened by a construction defect that posed a danger to workers even if no workers were present when the danger materialized.

In Ontario v. Guelph the contractor built defective change‑rooms in 2004 and an engineer negligently advised that the wall could support the loads.  In 2009 a student was killed when the wall collapsed.  Charges against the engineer and architect were held to be beyond the limitation period set out in the Act and therefore statute‑barred.  However the charges against the owner/employer (Guelph) were allowed to proceed even though no workers were injured.

The case established that owners whose employees then work in a building have an obligation to ensure that buildings are safe, and that they can be charged under the OHSA for safety defects that arose during construction.

 The [charge against the City ] does not relate to a single act.  It is not tied to the construction process.  Rather it imposes a duty on the city in its role as employer to ensure that a workplace is maintained in a safe manner.  This is an obligation that continues beyond any construction phase and endures for as long as the site remains a workplace.  It was the duty of the city to ensure that this wall was safe for workers on the date of the collapse just as it was its duty to ensure that it was safe on the day of its construction.

What does this mean? Employers can be on the hook for construction defects that went undiscovered until an accident occurred if endangers workers in the building.  Employers have a positive obligation under the OHSA to prevent safety hazards in workplaces.

All of this points to growing obligations for owners, employers and developers to ensure that buildings are constructed safely, that no workers are injured, that contractors have appropriate insurance, and to discover defects with diligence when construction is finished.  If you have questions about how to manage a construction project for your organization without taking on unnecessary legal risks, or how to manage potential hazards in an existing building please contact us!


Filed in: Commercial Law, Employment Law

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