January 9, 2009 By:
Print

General Scenario: The condominium corporation has a management company who manages the books and some aspects of the building. When the condominium corporation hired the superintendent and part-time cleaner, they were hired directly by the corporation. The condominium corporation engages independent contractors for most other major contracts. The condominium corporation has a person in the building who has a lot of construction and residential management safety experience. This individual is telling the condominium corporation that it is not performing its due diligence with respect to safety in and around the building.

For the purpose of this response, we will focus primarily on the requirements of Ontario’s Occupational Health and Safety Act ("OHSA"). The OHSA is designed to prevent accidents and illnesses in the workplace. The Ministry of Labour is responsible for the enforcement of the OHSA. Enforcement procedures can include fines and charges, depending upon the circumstances of a case.

The definition of "employer" in the OHSA is intentionally broad, and can include condominium corporations. In addition, for the purposes of work performed on the common elements, the condominium corporation is also the "owner" of the property. Therefore, the condominium corporation can have duties both as an owner and as an employer in relation to workers on the condominium property.

Furthermore, the definition of owner under the OHSA also states that an owner includes a “person who acts for or on behalf of an owner as an agent or delegate”. Accordingly, and as discussed further below, it is possible that the property manager might also be considered an "owner" in certain circumstances.

All workers are covered by the OHSA. Essentially, a “worker” is anyone who is paid to perform work; consequently, both independent contractors and employees are covered under the legislation. A "workplace" is any place that a worker works.

What this means is that a condominium property, or part of the property, is a "workplace" every time the condominium corporation hires a superintendent, a cleaner, a snow removal contractor, a landscaper, a roofing contractor, a concrete contractor, a window cleaner, etc. In other words, every time a condominium corporation hires someone to do work, the condominium property contains a workplace. In dealing with each of the scenarios below, the key issue will be whether the condominium corporation is considered an "employer" for the purposes of the OHSA. [Any time work is performed on the common elements, the condominium corporation will have obligations as "owner". The question will often be whether the condominium corporation has the additional obligations of an "employer" of "constructor". We note that for the purposes of this article, we will not be dealing with the obligations of a constructor.]

Employers, including condominium corporations, have a long list of responsibilities pursuant to the OHSA. Among them, employers have the following obligations:

  1. ensuring the prescribed measures and procedures are followed in the workplace;
  2. providing information, instruction and supervision to its workers to ensure their health and safety;
  3. ensuring a worker, or a person of authority over a worker, is acquainted with any workplace hazards; and
  4. taking reasonable precautions for the protection of the worker.

Before turning to each of the specific questions that have been asked in relation to this issue, it is important to note the following:

A condominium corporation cannot contract out of its obligations pursuant to the OHSA simply by taking the position that a "worker" is an independent contractor as opposed to an employee. However, in interpreting the OHSA, the Courts have found that there are certain circumstances in which the OHSA will not apply. We will discuss these circumstances further below.

Scenario No. 1: If one of the cleaners or the superintendent got caught in the garbage compactor, sustaining an injury, would the Ministry of Labour be looking to the condominium corporation or the management company to have instructed them with respect to safety?

Because the condominium corporation directly hired the superintendent and the cleaner(s), the condominium corporation would clearly be the employer, and have all the duties of an employer. As noted above, the condominium corporation's duties would include instructing, informing and supervising workers (section 25 of the OHSA). Therefore, the Ministry of Labour would, first and foremost, be looking to the condominium corporation to have instructed, informed and supervised the superintendent and cleaner in the performance of his or her duties.

[It is also important to note that the condominium corporation will have duties as the owner of the property to ensure that facilities are properly maintained. These duties are set out both in the Condominium Act 1998 as well as the OHSA [see section 29(1)(a)(iii) of the OHSA].

As far as concerns the liability of the management company, if the management company is responsible for supervising the cleaner or the superintendent (pursuant to a management agreement as between the condominium corporation and the manager), the management company will also have duties pursuant to the OHSA, including a duty to advise the employees of potential hazardous conditions such as a garbage compactor that does not have safety mechanisms (see section 27(2)(a) of the OHSA). Accordingly, the Ministry of Labour may also consider the role of the management company, if the management company had any responsibility for instructing or supervising the cleaner(s) or the superintendent.

In deciding whom, on the job, should be prosecuted (if anyone), the Ministry will normally ask itself the following questions: Who is most directly in control of this issue, and therefore truly responsible for the safety violation? Who has failed to exercise due diligence? [In some cases, there may be more than one person.] The Ministry’s attention will be directed at that person or those persons.

In cases where someone has not been in compliance with occupational health and safety requirements, there is also an obvious risk of liability. In general, liability will follow if one fails to exercise due diligence or to take reasonable steps to fulfill his or her obligations under the OHSA. [Note also that there is a risk of criminal responsibilities under section 217.1 of the Criminal Code pursuant to Bill C – 45. The effect of Bill C – 45 is to subject condominium corporations, condominium directors and condominium managers to the possibility of prosecution if work is undertaken on behalf of the condominium corporation, and there is a failure to take "reasonable" steps to prevent bodily harm as a result of the work.]

Scenario No. 2: If the condominium corporation had an overhead garage door repair person in to work on the overhead door and he did not have any warning devices on the ramp, and a resident driving into the garage on a very sunny day did not see him, and knocked him off the ladder, and he broke his leg (critical injury), would the Ministry of Labour inspector investigating the accident think it was enough when we tell him that we hired an experienced person to do the work, and that we don’t think we have any responsibility beyond that?

In this case, I assume that the garage door repair person was contracted by the condominium corporation to complete this one specific repair task. I also assume that the condominium corporation completed its due diligence and hired a reputable contractor to complete the job.

Assuming that I am correct in my assumptions, it is our view that the condominium corporation would not likely be liable in this case.

As noted above, the Courts have held that there are certain circumstances in which the OHSA will not apply. This scenario is one of them. The term “employer” under the OHSA has been defined by the Courts to exclude a person (or a condominium corporation in this case) who has a contract with a contractor for the performance of specific work (versus more general contracts for the supply of labour).

[Note: A key consideration in determining whether or not the OHSA will apply is to consider the substance of the work being completed. If the work is a one-time specific item completed by an independent contractor, the requirements of the OHSA may not apply. If the work is completed by an individual who completes many "specific little jobs" on the property, the OHSA likely applies.]

Would this situation be worse if the repair person told the Ministry Inspector that he had told us that he did not think the situation was safe?

In this case, the condominium corporation would almost certainly have some liability, although it may not flow from the requirements of the OHSA.

The condominium corporation would owe a duty to the repair person pursuant to the Occupier's Liability Act ("OLA").

The condominium corporation, as occupier of the common elements, is responsible for maintaining the premises, whether the situation is caused by the condition of the premises, or by activities conducted on the premises. Although the repair person may assume some liability (contributory negligence) for proceeding with the repairs notwithstanding the unsafe condition, the condominium corporation could be liable if it caused the dangerous situation by not responding to the repair person's concerns.

Scenario No. 3: If the window cleaners do not put their "Danger due to Work Overhead" signs as required in the Window Cleaner's Regulation, would the condominium corporation have any legal safety responsibility if a person on the ground walked under the cleaner as he came down to the ground [too fast because he was not using his control descent devices properly] and the person on the ground ended up with a broken arm and the cleaner ended up with a broken leg?

The Window Cleaning regulation (RRO 1990, Reg 859) is a regulation made pursuant to the OHSA. It applies to employers (including contractors and subcontractors) who supply window cleaning services, to workers who engage in window cleaning, and to owners of a building where a worker engaged in window cleaning may fall 10 feet or more.

As noted above, the term "employer" has been defined by courts to exclude contracts for specific work (versus contracts for the supply of labour). Again, in this case, we assume that the condominium corporation has completed its due diligence and hired a contractor who has expertise in this area to complete this specific work. Accordingly, the condominium corporation would not likely be considered the employer.

However, the Window Cleaning regulation includes specific obligations of the owner of a building when its building's windows are being cleaned. Some of these responsibilities are to ensure that scaffolding or suspension points are identified and adequate for the task (see sections 39 – 41 of the Regulation).

Scenario No. 4: What if the window cleaner was not properly trained, and he fell more than 10 feet. Does the condominium corporation have any obligation under the OHSA to confirm that these types of contractors are properly trained, or can the condominium corporation simply argue that they are not liable because it hired an experienced company.

Provided that the condominium corporation took all reasonable steps in completing its due diligence, and retained a reputable contractor with experience in this area, the condominium corporation would not likely qualify as an employer in such a case, and the obligations of the condominium corporation would be similar to the ones described in Scenario 3 above.

Additional Comments re: Workplace Safety and Insurance Act

Condominium corporations should also be giving careful consideration to coverage under the Workplace Safety and Insurance Act, worker’s compensation coverage for all employees of the corporation (which is optional for most condominium corporations).

What Should a Condominium Corporation Do to Minimize its Risks?

The duties and obligations of a condominium corporation will vary from building to building and from job to job. However, we have the following five key comments/suggestions:

  1. Virtually every condominium corporation is obligated to have an occupational health and safety policy in place, and posted as required by the OHSA.
  2. In order to develop this policy, the condominium corporation will need to conduct an assessment or audit of the health and safety hazards for that particular condominium corporation.
  3. Before any job is carried out, there should be a discussion between those involved in the job about the health and safety issues. If necessary, a qualified consultant should be retained who has proper expertise with respect to the relevant health and safety issues.
  4. The contract(s) related to the job should then confirm the responsibilities of the parties with respect to health and safety issues.
  5. If, during the job, the condominium corporation becomes aware of any health or safety problem, the condominium corporation must then move with haste to address the problem.

Nancy Houle and Steven Levitt are both lawyers with Nelligan O'Brien Payne LLP in Ottawa. Nancy is a senior member of the condominium law group and Steven a senior member of the employment law group. The information and advice contained in "Ask the Pros" consists of brief summaries of complex topics and are provided by the authors and the publisher without any liability whatsoever. Readers should obtain expert advice in specific situations.

[This article was reprinted with permission. Association of Condominium Managers of Ontario, 2009]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law