Contractors Across Canada:  OH&S and Due Diligence for Employers Operating in Multiple Jurisdictions

Occupational health and safety legislation varies across the country and in federally regulated workplaces. The result is a confusing patchwork of potential liability and exposure for employers who have not carefully considered and specifically structured a Contractor Safety Program for the handling of contractors in each jurisdiction.

In Ontario, the employer or owner engaged in contracting must take a "hands-on" approach, except when the work is construction. In construction, in certain circumstances, it can take a "hands-off approach". In federally regulated jurisdictions the question of who is responsible for the health and safety of contractors relates to the question of who "controls" the workplace or site.  In B.C and Alberta, where multiple employers are present the business owner must appoint a "principal contractor" to assume responsibility for safety or the obligation falls on the business owner. In some jurisdictions this only applies where the work is construction.  In the majority of other provinces multiple employers present at the same site as well as the owner of the site or work location, are all concurrently responsible with the "employer" or "principal contractor."

The manner in which multiple parties concurrently exercise responsibility over the same workers has, however, never really been clearly spelled out by any legislature or court. In addition, given the different legislation that applies across the country and the lack of guidance from courts and legislatures, applying concepts of due diligence in a Contractor Safety Program in different provinces as well as the federal jurisdiction presents serious challenges for even the most up-to-date and duly diligent employer.

This important and unique program, presented by one of the foremost authorities in Canada on this complex and specialized problem, is invaluable to all organizations that contract out work or construction across Canada. Each program is created for the specific needs of the organization.

Using Real and Hypothetical Case Studies, Participants Will Learn: 

• What legislation applies in specific provinces of concern
• What a duly diligent Contractor Safety Program looks like across provinces
• What the cases say about obligations and "due diligence" when contracting 

The Program Will Cover:

Cross-Canada Legislation and Important Case Law

• The various ways in which legislation across Canada provides for legal obligations and liabilities for contractors (extended definitions of 'employer", direct obligations for all workers on site)
• Why common sense does not apply, and why clear contract language, by the contractor or the party engaging the contractor may be ignored by the courts: Wyssen window-cleaning decision and Nova Scotia Public Works decision
• Two opposite approaches applicable for contracting 

Due Diligence Where Acting As "Employer" Or Where "Hands-On" Control Is Required 

• Contractor Safety Program must recognize situations where the work of contractors is the responsibility of the "employer" or facility owner
• Detailed scenarios based on real court cases
• Obligations for training, supervising, monitoring and coordinating contractors
• Importance of pre-qualification of contractors as a method to establish due diligence, and proper and effective pre-qualification processes
• Problems and pitfalls of standard pre-qualification forms and documents
• Problems with off-site activities of contractors
• The problem of controlling and monitoring contractors hired because of their special expertise
• The problem of the small contractor
• Due diligence where the facility manager has a choice between "hands-on" (acting as "constructor" or similar third party) or  "hands-off" approach (retaining "constructor"or similar party) 

Due Diligence Where "Constructor", "Prime Contractor" Or Similar Third Party Takes Responsibility For Work

• Contractor safety program must recognize situations where "constructor" or similar third party
• may undertake work and responsibility for employer or owner
• How in many jurisdictions this approach applies only for construction and deciding whether work
• is construction
• Deciding whether the employer owner should retain "constructor" or similar third party for project
• Discussion of the role of the "constructor" or "prime/principal contractor"
• Due diligence when retaining a constructor to undertake and control a project
• Distinct due diligence strategies for the "constructor" and for an owner who decides to contract to a "third party"constructor
• Maintaining status of general contractor as "prime/principal contractor" or "constructor" as construction proceeds
• How to handle safety issues where a third party is controlling a project
• How much "control" the third party must maintain
• Contract language and appropriate documentation strategies