A recent decision from the Ontario Court of Appeal is “sending alarm bells” through the construction world, says Sahil Shoor, construction and infrastructure lawyer at Gowling WLG.

Prior to the ruling, when an owner of a construction project and its general contractor signed a contract, the latter would agree to assume responsibility for health and safety standards under the Occupational Health and Safety Act, says Shoor, a partner at Gowling’s Waterloo office. Though the owner is not regularly on the job site, they will send inspectors to approve and review work. In so doing, the owner is liable if work is not up to OHSA’s standards.

“What I’d say is changed is the long-standing practices that existed in the construction world when it comes down to monitoring, quality control, safety and management,” says Shoor. 

“What this decision does is it says irrespective of what you agreed… you cannot displace that authority on somebody else.”

The decision does not change the law, but reinforces what the law has always been, says David McCaskill, Senior Crown Counsel for the Attorney General of Ontario, who acted for the appellant, the Ontario Ministry of Labour.

The decision was a “strong reaffirmation” of the Ontario Court of Appeal’s ruling in R. v. Wyssen, which is on of the “seminal cases on the definition of employer,” McCaskill says.

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