In a recent decision by the Supreme Court of Canada (“SCC”), West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, the SCC held that the British Columbia Workers Compensation Act (“WCA”) provides WorkSafeBC authority to penalize an employer who fails to ensure the health and safety of the employees of its independent contractors.
A tree faller who provided services to an independent contractor hired by West Fraser was fatally struck by a rotting tree while working within the area of a forest license held by West Fraser. As the license holder, West Fraser was the “owner” of the workplace.
WorkSafeBC investigated the accident and concluded that West Fraser had failed to ensure that all activities of the forestry operation were planned and conducted in a manner consistent with the Occupational Health and Safety Regulation (“OHS Regs”). WorkSafeBC then imposed an administrative penalty on West Fraser pursuant to s. 196(1) of the WCA, which permits WorkSafeBC to penalize an “employer”.
The issue before the SCC was whether WorkSafeBC had the authority to issue such a penalty as West Fraser was not the deceased worker’s employer.
The SCC held that West Fraser’s obligation to ensure the health and safety of workers at the worksite was not limited to the health and safety of its own employees. The OHS Regs imposed a duty on owners to ensure that work on their property was planned and conducted in accordance with safe work practices.
The SCC reasoned that a broad interpretation of s. 196(1), and specifically, an interpretation that considered an “owner of a forestry operation” to be an “employer” of the employees of independent contractors engaged by that owner, would best further the statutory goal of promoting workplace health and safety and deterring future accidents. This interpretation would also be responsive to the reality that maintaining workplace safety is a complex multi-party exercise involving shared responsibilities of all concerned.
While s. 196(1) can be engaged on the basis of an employer’s failure to comply with specific obligations provided in the WCA, the provision is not limited to such circumstances. An owner can be an “employer” for the purposes of the WCA by virtue of a relationship to the worksite itself, even in the absence of any direct employment relationship with those involved in a workplace accident.
This decision highlights that workplace safety is everyone’s responsibility. Owners must take appropriate health and safety precautions to ensure that all activities are planned and conducted in accordance with the WCA and OHS Regs, even if they have no employees performing work and all work is being done by employees of third party independent contractors.