OH&S Liability For Contractors: A Program for Federally Regulated Employers

As a federally regulated employer you engage a provincially regulated contractor to perform work for you. Who is responsible for the health and safety of that contractor, you or the contractor? If the federal Canada Labour Code applies, the concept of "control" is central.

This program covers the jurisdictional issues and identifies indicators of "control" which drive OH&S responsibility for contracting federally. You will learn how to develop a Contractor Safety Program that meets due diligence standards where you, the federal employer, are in control. You will learn what your obligations are when you engage a third party contractor to take control and how you can still risk being found in control if you interfere too much. Attendees will leave with an understanding of when they should be "hands-on" in ensuring the safety of contractors and when they should be "hands-off".

Using Real and Hypothetical Case Studies, Participants Will Learn About: 

• Issues and common misconceptions relating to contracting out
• When and how employer responsibility exists for contractors
• Relevant provisions of the Canada Labour Code for contractors and visitors
• Concept of "control" under the Canada Labour Code: responsibility for contractors who are granted access to a workplace "controlled" by the employer
• Leading federal cases   

The program will cover:

Jurisdictional issues  

• What law applies, federal or provincial, to the provincially regulated contractor engaged to do work by a federal employer?
• Examination of scenarios: What happens when:
• A federal employer retains a provincial general contractor to construct a new building on land it owns but does not control
• A provincially regulated general contractor is retained by a federal employer to construct a new section of highway through federally-owned land
• A federal employer retains a provincially regulated contractor to control all maintenance, security functions at buildings controlled by federal employer policies and staffed by federal employees
• Legal principles for deciding whether a contractor is under federal v. provincial jurisdiction
• Proper Contractor Safety Programs which meet most stringent standard of due diligence from applicable jurisdictions  

Due Diligence and Best Practices for a Contractor Safety Program Where the Federal Employer Controls the Workplace  

• The concept of due diligence federally
• Elements of a Contractor Safety Program that meets due diligence requirements:
• Understand the Canada Labour Code and obligations where workers or visitors access workplaces controlled by the employer
• Pre-qualification of contractors
• Contract language that permits control and direction of the contractor
• Orienting and informing contractors of foreseeable risks and hazards
• Communication and co-ordination where contract workers could endanger workers in the facility or be endangered by facility operations
• Monitoring of contracting activities
• Retention of the right to remove or require further safety training
• Putting contractors through your training
• Right to approve and control subcontractors
• Documentation of all review and monitoring activities and resulting actions
• Handling the small or "one-off" contractor
• Handling due diligence for the "expert" contractor

Where the Workplace is Not Controlled by the Federal Employer: Third Party Control and How to Lose It 

• Provincial cases on "control"
• Indicators of control
• Giving control to a third party
• Role of the federal employer where a third party has been involved
• Role of the third party
• What happens if the federal employer who appoints or relies on a third part to control a site becomes involved in controlling work, or the site, or intermingling its employees
• Elements of Contractor Safety Program for "hands-off" situation