A recent decision of the Ontario Superior Court of Justice, has broad implications for federally regulated employers and their contractors, across Canada. In that case, Justice Miller held that redevelopment and construction work at Pearson International Airport, operated by the Greater Toronto Airports Authority (GTAA), is under provincial authority and subject to Ontario's Occupational Health and Safety Act and Regulations.
This case is instructive for redevelopment and construction work of any federal work or undertaking, including but not limited to, airports across Canada. It reinforces the primary jurisdictional authority of provincial health and safety statutes and regulations. The case is critical for organizations in ensuring their programs are targeting the right legislation for legal compliance while at the same time meeting a "best practice" standard.
The case arose as a result of an incident that occurred on May 13, 2004, when an ironworker apprentice for the contractor at the Airport, Blenkhorn- Sayer Structural Steel Corp. ("Blenkhorn"), suffered serious injuries due to a fall at Terminal 3 at Pearson International Airport. Blenkhorn had contracted with Ellis-Don Corporation ("Ellis- Don") who had an ongoing contractual relationship to provide redevelopment and constructionrelated services at Pearson International Airport since 1989.
As a result of the injury to the ironworker apprentice, the Ontario Ministry of Labour investigated the incident and laid a total of 37 charges against Blenkhorn, Ellis-Don, and three individuals employed by those organizations. The federal OHS regulator did not assert jurisdiction and did not attempt to prosecute under that Canada Labour Code, Part II. At trail, all of the defendants brought an application to stay the charges on the grounds that the Provincial Ministry of Labour did not have constitutional authority to commence charges. The learned trial Justice agreed to the submission of the defendants and the charges were stayed.
On Appeal, Justice Miller, of the Ontario Superior Court of Justice, held that the Ministry of Labour was within their jurisdiction to apply provincial OHS laws. Therefore, when construction or redevelopment work at any federal work or undertaking, including airports, is undertaken by the company whose primary activity is construction or redevelopment work, provincial health and safety laws will apply. Further, in order for work at a federal work or undertaking to fall within federal constitutional authority, there must be such a singular integration with the operation of the court of federal undertaking, such that the service or work provided is essential to that federal work or undertaking's primary function.
This case reinforces the importance of having high health and safety standards set, regardless of whether there is certainty of the application of provincial or federal health and safety rules. In this author's opinion, even where there are significant differences between federal and provincial health and safety laws, a highest standard or "best practice" approach is to be recommended to ensure compliance with both provincial and federal occupational health and safety laws if any ambiguity arises. This not only prevents the need for costly litigation to determine which jurisdiction has legal authority to prosecute, but also, fundamentally, focuses on workers' health and safety and sets the highest standards available by law to be the best practice to prevent work-place incidents, injury and suffering for workers. ??