Workplace injury and death is highest in the construction industry. In 2008, the Federal Government recorded an average of 24.5 injuries annually per 1,000 employees in the construction industry. Given these statistics, it is in a construction employer's best interest to take all reasonable measures to ensure safety on construction worksites. 

In all four Atlantic provinces, occupational health and safety legislation and regulations ("OHS legislation") impose significant statutory obligations on the person and company who oversees the construction of a project (the "construction employer") to ensure the health and safety of workers, the worksite, and persons on or near the worksite. 

Although OHS legislation makes it clear that safety is the shared responsibility of everyone at the workplace (employers, contractors, employees, workers, unions, visitors, etc.), the burden to ensure safety usually falls to the construction employer, as the power and control to enforce worksite safety ultimately lies with them, by virtue of their control over the project. 

It is worth noting that, because of this power and control, the bulk of the consequences – including fines and criminal charges – also tends to fall to construction employers when there is a breach of OHS legislation, particularly where an accident, injury or death occurs.

OHS Legislation

OHS legislation confers significant responsibility on construction employers, including the responsibility to:

  • Take all reasonable steps to ensure safety of the workforce.
  • Take all reasonable steps to ensure the health and safety of any person at or near the worksite.
  • Putting in place a written health and safety program where there are a certain number of workers on site.
  • Ensure a joint occupational health and safety committee is established, or a health and safety representative appointed, depending on the number of workers on the site.
  • Immediately report workplace injuries or accidents to the appropriate government division.
  • Ensure all equipment, tools and Personal Protective Equipment ("PPE") used is compliant with legislated standards.

It is important to realize that obligations under OHS legislation to maintain a safe worksite are the same whether you hire your employees directly, or use independent contractors or subcontractors to perform the work. 

The legislation gives the government powers to:

  • Enter and inspect workplaces, without notice, to ensure compliance with OHS legislation.
  • Require production of documents by the construction employer.
  • Investigate accidents, incidents or reports of unsafe work conditions.
  • Charge or fine construction employers who do not comply with safety requirements.

Refusal to cooperate with a health and safety officer can be costly – in Ontario, Starland Contracting Ltd. was recently fined $29,500 after being convicted of three offences relating to the behaviour of a director, who swore at a visiting safety officer, ordered him offsite, made threatening gestures, and refused to produce documents ordered.

Penalties

OHS legislation provides for three types of penalties:

  1. Penalties for committing a Statutory Offence, usually breach of OHS legislation: 

These "quasi-criminal" charges proceed through the courts, and it is the court that decides the fine and other consequences. Each of the Atlantic Provinces caps the fine at $250,000 for each offence; however, additional penalties may be levied if the employer profited from their wrongdoing or the offence continued for multiple days. The courts are also given discretion to impose "creative" penalties, such as additional fines for health and safety education or a requirement to publish all facts of the accident.

  1. Criminal Negligence: 

A corporation can be charged with criminal negligence pursuant to sections 22 and 217 of Canada's Criminal Code. Such charges are exceedingly rare and reserved for the worst acts of negligence. There is no cap on penalties. Recently, the Ontario Court of Appeal increased the penalties to $750,000 against a corporation that pleaded guilty to criminal negligence. Six workers had fallen 14 stories from a swing stage on Christmas Eve 2009. The corporation plead guilty after the investigation showed the workers had been using marijuana on the worksite with the knowledge of their supervisor, had exceeded the allowed amount of persons on the swing stage, the swing stage did not meet legislated standards, and the workers were not using appropriate fall protection gear.

  1. Nova Scotia – Administrative Penalties: 

These "quasi-criminal" charges proceed through the courts, and it is the court that decides the fine and other consequences. Each of the Atlantic Provinces caps the fine at $250,000 for each offence; however, additional penalties may be levied if the employer profited from their wrongdoing or the offence continued for multiple days. The courts are also given discretion to impose "creative" penalties, such as additional fines for health and safety education or a requirement to publish all facts of the accident.

Due diligence: taking all reasonable steps to ensure safety

A breach of the OHS legislation is a "strict liability offense", which means that, unlike criminal charges, there is no need for the construction employer to have intentionally done wrong. 

Due diligence is the only defense to a strict liability offense. To succeed, the construction employer must prove it took all reasonable care at the worksite. 

Steps a construction industry employer can take to ensure due diligence include:

  1. Making safety part of the contract:
  • Specify hiring/tendering criteria on safety, such as safety certification of the company, coordination of and filing of a safety plan for the job, and safety standards that will be expected on the project.
  • Institute audits for compliance with the safety aspects of the contract.
  • Require that all workers undergo a safety orientation of the site.
  • Treat non-compliance with safety components of the contract as a breach of contract.
  1. Putting safety protocols in writing, including:
  • A health and safety policy (whether a written program is required by OHS legislation or not).
  • Ensure all protocols meet or exceed both the requirements in OHS legislation, and what is considered standard in the industry.
  • A coordinated worksite safety plan applicable to all employers/companies/workers onsite.
  • Safe work procedures for specific jobs or tasks.
  • A policy making it clear workers will not be permitted to work on the site if they are impaired by drugs or alcohol.
  1. Clearly communicating safety protocols: 

Ensure all workers have copies of the written protocols, have reviewed them, have been given verbal instruction about them, and have had the opportunity to ask questions. Have all workers entering the site sign a pre-access safety awareness acknowledgement stating that they have been provided with a safety orientation and are aware of safety policies and procedures.

  1. Making safety part of the daily routine, including: 

Tool box meetings, regular safety meetings, and frequent safety updates. Conduct regular hazard assessments of the worksite as the job progresses, and advise employees of all potential safety hazards at each stage of the project.

  1. Providing safety training to workers, supervisors and sub-contractors, including: 

Training on the worksite safety protocols, accident prevention, requirements relating to PPE, and basic safety on the worksite. If a safety issue arises during the job, provide additional training emphasizing the importance of complying with safety protocols.

  1. Ensuring all workers use, and understand the importance of using, appropriate PPE: 

An employer in Ontario was recently convicted of a breach of OHS legislation and fined $75,000, and the supervisor onsite was also convicted and jailed for 45 days, after a worker fell off the roof and suffered permanent paralysis. The worker had not been trained in the use of fall protection equipment, told it was necessary, or provided with PPE.

  1. Consistently enforcing the safety protocols: 

Correct, warn or discipline workers for every breach of a safety protocol. In the case of subcontractors, the foreman or site supervisor should ensure they are enforcing the safety standards established for the worksite.

  1. Ensuring all workers on the job are properly qualified to do the work they are doing: 

This may include requiring certain credentials, courses or experience, providing specific training (particularly if the work is unique or unusual), checking references and credentials at the hiring stage, and ensuring any worker who is not performing as expected is monitored, provided with additional instruction and, if necessary, removed from the worksite.

  1. Ensuring workers are properly supervised: 

Workers should at all times be adequately supervised by a competent foreman, site supervisor or lead hand. A system should be in place for reporting and following up on any alleged violations of the safety rules on the worksite. Supervisors should be aware of, and enforce, all safety protocols.

  1. Ensuring equipment meets industry standard, any inspections and maintenance of equipment are up to date, and employees understand the proper use of the equipment: 

A New Brunswick employer was fined $100,000 plus a victim surcharge of $20,000 for failure to inspect, maintain and ensure proper use of equipment after an employee was electrocuted. The employee had been using a floor polisher with a frayed extension cord on a wet floor.