[author: Lindsay Mullen
An independent contractor was working amongst a group of other parties on the demolition of a few buildings in downtown Nipawin, SK when he snagged a gas riser with his backhoe. This led to the line being pulled from the main which in turn caused gas to seep into through the ground and pool in the basement of a nearby butcher shop. Shortly thereafter the gas was ignited by a piece of machinery in the basement and an explosion occurred killing two people and seriously injuring five others. The contractor was found guilty of two Occupational Health and Safety Act violations.
The Court confirmed that an independent contractor has a duty under the Act to conduct his work, insofar as is reasonably practicable, in a manner that ensures that he and the other workers are not exposed to risks to their health and safety. The Court held that, although the outcome may have been changed if some of the other parties who had more control over the project had acted differently; it was not the outcome that was the focus of the charge, but rather the creation of the risk. The Court found that the contractor was familiar with the possible consequences of snagging the gas line and had the time to locate the riser by hand, using a shovel, instead of a big piece of machinery like the backhoe. Even though there were other parties involved in managing the procedures after the snag occurred, it was the contractor who created the risk by his own independent actions. He “failed to establish that there was no better practical means than was actually used to satisfy the onus upon him in this case”.
The significance of this case is that it confirms that occupational health and safety law is not only concerned with the actions of the party with the most control or primary responsibility over a worksite or project. Where a party has some control over the work being performed, he must carry out his duties in accordance with the Act and ensure that the work is being conducted in a safe manner.