What Are the Obligations of a Condominium Corporation Under the Occupational Health and Safety Act?
Condominium corporations must always be mindful of their duties and obligations under the Ontario Occupational Health and Safety Act (the “OHSA”). First and foremost, a condominium corporation is considered to be an “owner” which requires it to be aware of the duties set out under Section 29 of the OHSA.
We often provide advice to condominium corporations relating to obligations to protect workers in situations where there is violence or harassment on the premises. However, there are other aspects of the OHSA that could impact a condominium corporation, including:
- Condominium corporations are, of course, employers for the purposes of work performed by workers who are hired by the corporation as employees.
- In some cases, an “owner” (including condominium corporations) under the OHSA, may also have overlapping but differing responsibilities as a “constructor” under the statute so this is also something to be mindful of.
Previously, it was not thought that a condominium corporation would be an employer or constructor for a construction project. However, a decision of the Ontario Court of Appeal in a case dealing with a Municipality and a construction project raises a new area of potential liability.
New area of potential liability:
Ontario (Labour) v Sudbury (City) involved the fatal injury of a pedestrian who was walking through a construction site in Sudbury, Ontario in 2016. As a result of this accident, the general contractor for the construction project as well as the City of Sudbury were charged with various violations under the OHSA and its Regulations.
At trial, the judge found that the City was neither an “employer” nor a “constructor” as defined under the OHSA and therefore did not have the prescribed statutory responsibilities for parties in those roles.
On appeal however, the Court of Appeal found otherwise, focusing on the definition of “employer” under the OHSA, which states as follows:
“employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;
The Court of Appeal held that there was “no doubt” the City was an “employer” because City inspectors were on site at different times to review for compliance and monitor the progress of the work. While the City was not considered a “constructor” under the OHSA, it was found to be an “employer” and therefore had significant responsibilities under the OHSA applying to employers.
How does this decision apply to condominium corporations?
In our view, while this decision does not apply directly to condominium corporations, the principles noted by the Court of Appeal might apply in two situations:
- when a condominium employee is involved in a construction project in any way, the corporation may have OHSA responsibilities as an employer even if the employee is not involved in an accident; or
- where the corporation hires an independent contractor to carry out work on the condominium property (as this is a “contract for services”), the condominium corporation might again be considered an “employer” as defined in the OHSA.
Again, while we feel that this Court of Appeal decision is most appropriately applied to a municipality based on the fact that the City of Sudbury inspectors were on site at various times performing their duties, it is a good reminder that condominium corporations should carefully consider their obligations for the health and safety of their employees and contractors as required under the OHSA.
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