Release date: June 10, 2021
It is generally understood by most condominium managers and directors that condominium corporations have certain obligations under the Occupational Health and Safety Act (OHSA). The OHSA arises most often in cases involving allegations of violent or harassing behaviour that is directed toward persons for whom the condominium corporation is their workplace. In those cases, the corporation has a duty to protect those workers regardless of whether they are employees of the corporation or of a third-party contractor. Look for more on this in an upcoming newsflash.
A recent decision of the Court of Appeal for Ontario illustrates a new area in which condominium corporations could have responsibilities, and liability, under the OHSA. In Ontario (Labour) v. Sudbury (City), the court considered an appeal by the provincial Ministry of Labour. The City of Sudbury had contracted with a third-party construction company to carry out a road repair project for the City. Tragically, a woman was struck and killed by a road grader operated by an employee of the construction company. Both the construction company and the City were charged under the OHSA for breaching their duties as employers to take sufficient steps to prevent the incident from occurring.
At trial, the charges against the City were dismissed on the basis that (among other things) the City was not an “employer” for the purposes of the OHSA. The Court of Appeal reversed this decision and held that the City was an employer for the purposes of the OHSA. The court based this finding, in significant part, on the fact that the City’s own employees “were present on the project site and performed a variety of tasks” in connection with the project.
The implications of this decision are obvious for condominium corporations. Any condominium corporation that uses its own employees in connection with any construction project on the corporation’s property could be potentially liable as an employer in the event of a serious injury or death connected to the project, even if the corporation’s own employee is not directly involved in the incident. All such projects should be approached on a case-by-case basis with this new consideration in mind. As always, corporations, boards and managers should seek legal advice for corporation-specific issues.