Canada: WCB Report Confirms Need To Assign Prime Contractor

On March 5, 2012, WorkSafeBC released its incident investigation report concerning a workplace accident that resulted in the death of a worker at the vacation home of Gordon Campbell, Canada's High Commissioner to Britain and the former Premier of British Columbia. The report found Mr. Campbell technically responsible for the accident as a result of being the default prime contractor at the work site. This decision underscores the importance of owners at multiple-employer construction sites ensuring that they properly assign a prime contractor in writing or face liability for failing to ensure that someone has oversight responsibility for compliance with occupational health and safety at the workplace generally.

Background

Gordon Campbell, acting as agent for his wife, the registered owner of their vacation house, hired a roofing contractor and a general contractor to perform renovations on their vacation house. During renovations on the roof of the house, a skylight was removed and the resulting hole was covered with plastic sheeting to prevent damage to the inside of the house from the elements, contrary to the standard industry practice of nailing a piece of marked plywood over the opening.

On July 4, 2011, worker David Lesko fell into the opening through the plastic sheeting and sustained fatal injuries.

Under section 118 of the British Columbia Workers Compensation Act (the WCA), an owner must assign a prime contractor in writing to co-ordinate the work site where there are two or more employers working on the work site at the same time. The WCA requires the prime contractor of such a multiple-employer workplace to "ensure that the activities of employers, workers and other persons at the workplace relating to occupational health and safety are coordinated," and to do everything that is reasonably practicable to establish and maintain a system or process that will ensure the compliance of employers, supervisors, suppliers and others with the WCA and other regulations in respect of the workplace.

Section 118 of the WCA also provides that an owner who fails to assign a prime contractor in writing will be the prime contractor for the purpose of the WCA with all of the liability that position entails. Where there are multiple owners, the responsibility for meeting an owner's obligations under the WCA lies with the owner who had or should have had knowledge of, and control over, the particular workplace. Other jurisdictions in Canada have similar legislation with similar requirements.

In this case, Mr. Campbell asked the general contractor to manage the renovation project but did not assign the general contractor as the prime contractor in writing as required by the WCA. Once the subcontractors began to work on the project, the site became a multiple-employer workplace for the purposes of the WCA. Because Mr. Campbell was found to be acting as agent for the owner of the property – his wife – WorkSafeBC found him to be an "owner" for the purposes of the WCA and was therefore responsible for ensuring safety at the workplace in the absence of a properly assigned prime contractor.

WorkSafeBC also concluded that the accident resulted from Mr. Lesko's employer failing to establish consistent safe work procedures for covering or guarding skylight openings and other roof openings and that the homeowner failed his duty to "have in place a system to ensure the various trades on site complied with the Workers Compensation Act and the Occupational Health and Safety Regulation, including fall protection requirements."

Media reports have suggested that WorkSafeBC is considering financially penalizing Mr. Lesko's employer and that Mr. Campbell would be issued an order but no penalty. Liability for breaches of these provisions of the WCA can, however, be significant. A person or corporation convicted of a first offence under the WCA can be held liable to a penalty of over C$600,000 and face up to six months' imprisonment.

This investigation report serves as a reminder that owners must ensure health and safety at the work site which includes that an owner or the owner's agent ensure the proper written assignment of a prime contractor in a multiple-employer workplace situation.

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