[author: Adrian Miedema]
Where a 143-page contract made clear that a contractor was the “constructor” under health and safety legislation, the Yukon government, as owner of the project, was not the constructor, the Supreme Court of Yukon has decided.
The government, the contractor and the contractor’s supervisor were all charged with offences under Yukon’s Occupational Health and Safety Act after a blaster set off a charge that resulted in rocks falling on nearby homes, one of which punctured a roof.
The court noted that the contract between the Yukon government and the contractor, Sidhu Trucking, stipulated that Sidhu Trucking was the constructor. The contract was not an evasion of government responsibility for safety, but rather an agreement that Sidhu Trucking would assume the obligations of constructor under the OHSA.
The court stated that it was preferable in principle that there should be one constructor on a project and that the constructor’s identity be made clear at the outset so there was no confusion.
Here, the contract was clear. The court held:
“Where an owner and contractor agree that the contractor shall assume the statutory obligations of ‘constructor’, it makes little sense to challenge that arrangement, unless it can be established that the reality was quite different or the owner was attempting to evade its statutory duty. That is not the case in this Project. In my view, the evidence and the contractual provisions lead to the conclusion that the Yukon Government did not act as constructor on the Hamilton Boulevard Extension Project, but rather exercised its rights under the Contract to ensure compliance with quality and safety. These rights are consistent with an owner’s rights.”
This case demonstrates the importance of project owners clearly assigning “constructor” safety obligations to the general contractor in construction contracts – if the owner does not intend to be the constructor. If the factual reality is consistent with the contract, the owner will likely not be the constructor.
Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., 2012 YKSC 47 (CanLII)