Using Contractors in Ontario:

How And Why Employers / Workplace Owners Should Implement OH&S Due Diligence Standards When Using External Contractors

If you do not have a Contractor Safety Program that meets "Due Diligence" requirements you are at risk. Why? Because, as counter-intuitive as it may seem, in Ontario an employer that contracts out work does not automatically contract away responsibility and liability under the OHSA - no matter what the contracting parties agree to, in writing or otherwise, and even if you are using a sub-contractor for its special expertise. 

As an owner or employer, you can also be liable for the OHS violations of sub-contractors engaged in "construction" work, including installation of machinery and equipment at your operating facilities.

Finally, if you are an owner in Ontario and you do not have a "constructor" to properly and completely manage the work on a construction project on your behalf, you inherit OH&S liabilities for the entire construction project. 

This important and unique program, presented by one of the foremost authorities in Canada on this complex and specialized problem, will be of value to organizations operating exclusively in Ontario.   Jurisdictional issues relating to Ontario contractors entering federally regulated sites and workplace are also covered.

Using Real and Hypothetical Case Studies, Participants Will Learn: 

• How legal obligations and liabilities for external contractors arise in Ontario
• How clear contract language shifting OHS liability to contractors is ignored by the courts
• Why the "Employer" in Ontario must usually take a "hands-on", due diligence approach to training, supervising and monitoring external contractors
• Where, why and when a different "hands-off" approach might be available for work the OHSA defines as a construction project
• Obligations when external contractors are engaged in construction, including installation of equipment, and you do not have a constructor

The program will cover:

Legal Obligations And Liabilities Under OH&S Legislation For The Outside Contractor 

• Legislation in Ontario
• The owner/employer's legal obligations and liabilities for contractors
• Extended definition of "employer" and direct obligations for all workers on a site
• How you cannot shift liability based on even the most explicit wording of a contract
• Employer obligation to take a "hands-on" due diligence approach to training, supervising, monitoring and coordinating contractors
• Key court cases on contracting
• Government discretion when deciding who to charge in contracting accidents

Step by Step Due Diligence When A "Hands-On" Approach is Required 

• Knowing the law, even for your "expert" contractor
• Using pre-qualification of contractors as a method to establish due diligence
• Proper and effective pre-qualification processes
• Problems and pitfalls of standard pre-qualification forms and documents
• The problem of controlling and monitoring contractors hired because of their special expertise
• The need for monitoring and enforcement - even if they are not your employees
• The problem of the small contractor
• Jurisdictional issues
• Issues when federally regulated contractors enter your worksite (if applicable)
• Issues when you send your workers or contractors to federal sites (if applicable) 

Construction - Deciding If A "Hands-off" Approach is Available  

• Definition of "construction" and drawing the line between maintenance and "construction"
• Ministry Guidelines and case law
• "Constructors", Owners" and Employers" and concurrent responsibility of these corporate parties at a construction site
• Unique potential for the workplace owner to adopt a "hands-off" approach if it can effectively contract construction work to a "constructor"
• Deciding as a workplace owner, whether you wish to undertake construction work as a "constructor" or hire a "constructor"
• Applicable legal approaches and how to apply them 

Contracting Away Responsibility - The "Hands-Off" Approach 

• Factors considered by courts and tribunals in determining whether owner or third party general contractor is undertaking or controlling a project
• When and how can the owner become a "constructor" even if it has retained a "constructor"
• What to do when deciding to retain a general contractor as "constructor"- strategies for ensuring that legal responsibility given to a "constructor" remains contracted away
• Greenfield versus operating facilities
• Unique issues for operating facilities: what to do when multiple construction activities are taking place with multiple constructors
• Strategies to follow when the "constructor" is not following proper safety procedures, and you wish to avoid the status of constructor

Due Diligence Strategies As Constructor - A Hands-On "Due Diligence" Approach

• Role of the "constructor" and OHSA dutiesSelection/pre-qualification of contractors including "experts", smaller contractors
• Proper, practical and effective monitoring, inspection processes
• The non-compliant contractor
• Familiarizing contractor with problems, hazards
• Importance of communication and co-ordinating strategies
• Appropriate contract language and documentation of due diligence