Did the Supreme Court of Canada’s Sudbury decision expose a flaw in Ontario’s internal responsibility system design?


Kevin Brown – CEO of Cobalt Safety

Special to CaDCR

In light of the Supreme Court of Canada’s recent Sudbury decision, the lack of clarity within the liability pathway became evident. Is it time for a critical dialogue to emerge regarding the effectiveness of Ontario’s Internal Responsibility System (IRS) in construction safety? As someone who has trained thousands of supervisors and executives across various provinces, I have observed a consistent source of confusion within the IRS, particularly around the role of the ‘Constructor’. This confusion, often echoed by the Ministry, underscores a broader issue: the potential flaw in Ontario’s IRS, especially when compared to systems in other provinces where the role of ‘Prime Contractor’ is more clearly defined.

The term ‘Constructor’ is found in only two provinces, leaving much to interpretation with its scant two-line definition in Ontario’s OHSA. This ambiguity places significant safety liabilities on construction projects and complicates compliance when the role may change within the project scope. My experience has led me to believe that clarity in legislation is not just a matter of legal precision, but a cornerstone of effective safety management. The Sudbury case has, unfortunately, compounded this ambiguity, blurring the lines of responsibility for construction safety rather than clarifying them.

Considering this, is it time for Ontario to rethink its approach and consider aligning with the ‘Prime Contractor’ model used in other Canadian provinces? The adoption of the Prime Contractor model over the Constructor role in Canadian safety laws offers several distinct advantages, particularly in the realm of clarity and uniformity in safety standards. The Prime Contractor model, as utilized in other Canadian provinces, provides a more comprehensive and clear delineation of responsibilities.

This model centralizes safety accountability, ensuring that one entity is unequivocally responsible for the coordination of trades and overseeing all health and safety aspects on a construction site. This centralization is crucial in multi-employer environments, where the presence of numerous contractors and subcontractors, safety programs, owners’ operations, as seen in manufacturing and food plant construction activities can otherwise lead to a diffusion of safety responsibilities.

Moreover, the Prime Contractor model fosters a more cohesive and harmonized approach to safety management across different regions in Canada. This uniformity is beneficial for companies operating in multiple provinces, as it reduces the complexity of having to navigate differing safety regulations and roles. It may simplify training and compliance, as the consistent definition and expectations of a Prime Contractor are easier for project owners, companies, workers, and supervisors to understand and implement.

Additionally, this model has proven effective in enhancing communication and collaboration among different stakeholders on a construction site, leading to more proactive and preventive safety practices. The Prime Contractor’s explicit responsibility for communication, site-specific risk assessments, scheduling coordination, emergency response planning, human oversight, inspections, accountability, and incident investigations creates a more robust and proactive safety culture.

Adopting the Prime Contractor model across all provinces could therefore lead to a higher standard of safety in the Canadian construction industry, ultimately reducing workplace accidents and promoting a safer working environment.

The Sudbury decision has underscored the imperative for a more structured and transparent approach to enhancing construction safety in Ontario. A pragmatic step towards this goal would involve convening a comprehensive dialogue between leadership and legal teams representing all stakeholders.

This collaborative effort is essential for the continuous improvement of safety standards and the effectiveness of the Internal Responsibility System. Through such a forum, diverse perspectives can be harmonized, leading to more cohesive and effective safety protocols.

The cornerstone of improved safety lies in legislated clarity rather than confusion.

Kevin Brown is the founder and CEO at Cobalt Safety Consulting Inc.


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