In Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., the Supreme Court of Yukon considered, among other issues, whether the Yukon government was the "constructor" under Yukon’s Occupational Health and Safety Act (OHSA). In this case, the government, a contractor and the contractor’s supervisor were all been charged with offences under the OHSA after a blaster had set off an explosive charge that resulted in numerous rocks falling on occupied homes nearby. In its decision, the Court considered the definition of “constructor” under the OHSA (which is very similar to the definition of that term under Ontario’s Occupational Health and Safety Act) and the contract under which the government retained P.S. Sidhu Trucking (PSS) for the construction of the road. Notwithstanding that the contract indicated that PSS assumed the responsibilities of the constructor and agreed to comply with the OHSA and its regulations, the Director of Occupational Health and Safety alleged that the contract repeatedly stipulated how PSS would perform its obligations (including being required to obtain the government’s approval prior to blasting) and that the government became the constructor for the project. The Court noted that it was preferable that the constructor be identified at the outset of a project to ensure workplace safety. The Court also noted that the intention of the parties regarding who was the constructor, as established by their contract, was a relevant but not a determinative factor. After considering the obligations of the parties under the construction contract, the Court concluded that the control of the blasting remained with PSS – even though it was required to provide certain information to, and obtain approval from, the government prior to blasting. As a result, the Court held that the government was not the constructor of the project and, thus, not subject to the associated obligations.
To read the full Supreme Court of Yukon decision, please see Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd.
Jeff Gracer (Partner at Sive, Paget & Riesel)