In Quebec, the Act Respecting Occupational Health and Safety (the Act) binds a principal contractor to the same extent as an employer. Principal contractors must observe the obligations imposed on employers by the Act and its regulations, including obligations regarding the protection of the health, safety and physical well-being of construction workers. The ‘‘principal contractor’’ is defined by the Act as being the owner or any other person who, on a construction site, is responsible for the carrying out of all the work. Needless to say, determining who is responsible for the carrying out of all the work has repeatedly been the cause of litigious disputes.
On July 11, 2011, the Court of Appeal, in a judgment written by Honourable Pierre J. Dalphond, specified the criteria to be considered in order to identify the principal contractor of a construction site. The judgment rendered in Commission de la santé et de la sécurité du travail c. Hydro-Québec dealt with penal charges brought by the Commission de la santé et de la sécurité du travail (CSST) against Hydro-Québec for its alleged failure to fulfill its obligations under the Act in connection with the deadly fall of a worker on a construction site. In first instance, the Court of Quebec had acquitted Hydro-Québec of the alleged offence holding that the CSST did not prove beyond a reasonable doubt that Hydro-Québec was the principal contractor. The Superior Court had also dismissed the CSST’s appeal.
Before the Court of Appeal, the CSST argued that the lower courts erred in failing to recognize Hydro-Québec as the principal contractor of the construction site in question. According to the CSST, the principal contractor is identified before the start of the construction work, and the documents relating to the call for tenders specifically designated Hydro-Québec as the principal contractor.
In its judgment, the Court of Appeal disagreed with the position taken by the CSST. Building on the test set out by the Commission des lésions professionnelles, Justice Dalphond stated four elements that need to be considered when identifying the principal contractor:
- Identification of the construction site;
- Determination of all the construction work which is to be carried out;
- Characterization of the legal relationship between the owner and the third party in order to determine whether the former has entrusted the latter with the responsibility of carrying out all of the construction work;
- In the absence of such a legal relationship, the owner is considered the principal contractor within the meaning of the Act.
With respect to the last two elements, Justice Dalphond explained that the nature of the relationship between the parties may change throughout the course of the carrying out of the construction work. Therefore, while it is true that there must be a principal contractor before the start of the construction work - and at any time thereafter - and while it is true that substantial weight is attached to the contract entered into between the owner and the third party retained before the start of the construction work, in the context of a penal proceeding, we must identify who was the principal contractor on the particular day that the alleged offence took place.
In the present case, Hydro-Québec had entrusted a contractor with the carrying out of all the work as part of a general contract of availability. This contractor chose the method of carrying out the work, hired the required workers and retained the services of a subcontractor to assist it in the carrying out of the construction work. No employee of Hydro-Québec participated in the carrying out of the work nor in choosing the method of carrying out such work.
The Court of Appeal therefore dismissed the CSST’s appeal holding that the actual principal contractor of the construction site was the contractor entrusted by Hydro-Québec, and this despite the fact that the documents relating to the call for tenders had designated Hydro-Québec as the principal contractor. In fact, in the context of a contractual relationship lasting more than two years, the characterization of the nature of the relationship intended by the parties ought to be made at the time a specific order is placed for the construction site.