b'Legalthe officers were present at Inter- miumbecausetheyhavetheobjective. The Crown has 30 days The reason(s) a constructor wasThe information contained inpavingsrequest,andInterpav- resources and the capability andin which to seek leave to appeal toselected for a job, including: thisbriefingnoteisprovidedfor ingdirectedtheiractivities. Thetheunderstandingofwhatitthe Court of Appeal for Ontario. o i tsskill,knowledge,ex- general information purposes only City simply arranged for and paidmeans to be the constructor. pertiseandqualifica- anddoesnotconstitutelegalor theofficers. WhethertheCitytookad- Takeaway for Employers tions; other professional advice, nor does The Crown noted the City re- equatestepstoevaluateInter- Foraconstructionprojectoits health and safety train- accessingthisinformationcreate tained contractual authority to firepavings ability to do the workowner, it remains troubling that aning and supervision pro- a lawyer-client relationship. This workers found to be incompetent,in compliance with OHSA:Theownercanbeconsideredanem- tocols; presentation/article is current as of and to suspend work on the proj- evidencewasthattheCityhadployer under OHSA, even in theo i tshealthandsafetyre- August 28, 2024 and applies only ect for any reason. The court foundtakensuchsteps.Inparticular,absenceofcontroloverworkers.cord; and to Ontario, Canada, or such other that while the City had this power,theCity:therewasnoevidenceithadever ContractsoutroadbuildingHowever, this new Superior Courto a ny prior experience withlaws of Canada as expressly indi-been exercised. and uses a contract that includ- decision provides some guidance tothe owner. cated. Information about the law Finally,theCrownpointedtoed general conditions developedowners regarding their liability un-Theexpectation,understoodis checked for legal accuracy as at the fact that the City had a processby a group of municipalities inder OHSA. toallparties,thatallhealththe date the presentation/article is in place to receive complaints aboutcooperation with the MinistryAprojectownermustbalanceandsafetyconcernsordefi- prepared but may become outdat-the project. However, the evidenceof Transportation. two considerations. On one hand,ciencies will be directed to the showed it was the responsibility ofHad used Interpaving on ap- theownermustexercisetheap- constructortobeaddressed,ed as laws or policies change. For Interpavingtorespondtothoseproximately 40 projects in thepropriatelevelofduediligenceand that the constructor willclarificationorforlegalorother complaints, which it did. preceding five years. over a project. On the other hand,be accountable for complyingprofessional assistance, please con-Alltold,thecourtfoundthe Required Interpaving employ- takingtoomuchcontrol may tipwith OHSA. tactSherrardKuzzLLP.City had delegated control to Inter- ees to have specific safety train- the balance such that a court mayAnycontractualdocuments paving to overcome the Citys owning designed for City projects. that set out control of the proj- Referenceslackofconstructionskill,knowl- Whether the City monitoredfindanownerhasactualcontrolect and the powers and respon- 1. RvGreaterSudbury edgeorexpertiseandhadpaidaandsupervisedInterpavingsoftheworkplace,beyondmerelysibilities of each party. (City),2024 ONSC 3959.premium to do so. A City employeework:Thecourtpointedtosev- delegating,supervisingandTo learn more and for assistance2.Ministry of Labour, Immi-testified at the trial: eralexamplesinwhichtheCitymonitoring the constructor. This isassessing liability at any time priorgration and Skills Development.wearenotfamiliarwithmonitored, notified and met witha delicate balance. to or during a construction project,3. 2023SCC28.www.what it means to be a construc- Interpavingregardingsafetyis- If an owner/employer does notor if an OHSA charge is laid, con-tor. We dont have the resourcessues,includingcomplaintsfromcontrol the project and has insteadtact the health and safety lawyers atc a n l i i . o r g /e n /c a / s c c /or the capacity or the capabili- thepublic,andregardingsignagedelegated that control to a construc- Sherrard Kuzz LLP. doc/2023/2023scc28/2023scc28.ties.Itsveryimportanttousand fencing.All of this, the courttor, the due diligence analysis willDanAverbach and Luizahtml.thatourgeneralcontractorsfound, indicated the City had actedconsidertheemployersdiligenceVikhnovich arelawyerswith Sher- 4. Foranin-depthreviewof understandwhatitmeanstowith due diligence. inselecting,evaluating,supervis- rard Kuzz LLP,oneofCanadasthisissue,seeourJanuary2024 be the constructor and take re- Perhaps most tellingly, the courtingandmonitoringtheconstruc- leading employment and labour lawnewsletter:www.sherrardkuzz.sponsibility for those activities.agreedwiththeinitialtrialjudgetor. This is a case-specific analysis.firms,representingemployers.Dancom/newsletter/whos-in-con-Its not a situation to be takenthattheMinistryhadattemptedAt the very least, a project ownerandLuizacanbereachedat416- trol-supreme-court-of-canada-lightly, we understand that. Weto put the project under a micro- should carefully consider and main- 603-0700 (main), 416-420-0738 (24- addresses-when-an-owner-is-an-understandthattheresapre- scope in order to bring about itstain records of the following: hour) or by visitingsherrardkuzz.com. employer-on-a-construction-site.Simple to install Since 1935pre-grown modularRoofing & Sheet vegetated roof systems Metal Contractors Re-Roofing SpecialistsMaintenance & Repairs Specialized in easy.YOUR JOB IS Industrial & Commercial HARD ENOUGH. GETTING MATERIALS SHOULDNT BE. ITS THE WORKMANSHIP THAT COUNTS220 Norseman St.,Toronto, ONM8Z 2R4Roofmart.ca Tel: 416-239-3594liveroof.ca Fax: 416-239-9891519-671-5777 jseeback@seeback.comwww.seeback.com20ONTARIO ROOFING NEWSISSUE 3 2024 THE ONLY SOURCE FOR PROFESSIONAL ICI ROOFING CONTRACTORS IN ONTARIO ORN'