SUPREME SURPRISE

Importantly, the degree of potential exposure for owners
may depend in part upon the nature of the contractual relationship
with the contractor and the project delivery model. We consider
below the implications for certain project delivery models.
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tional health and safety requirements. Owners also satisfy
these obligations by selecting a project delivery model
which contractually allocates this risk to the contractor.
Project owners previously relied on the proposition
that they were not an employer under the OHSA. Under
this paradigm, the due diligence analysis was not at the
forefront, as the liability inquiry would rarely advance to
that stage. However, given the Court’s decision in Greater
Sudbury, this paradigm no longer applies, and the due
diligence analysis will instead assume greater prominence
as the critical component of the liability inquiry. Owners
will need to adjust accordingly in order to bolster their
due diligence defence.
Importantly, the degree of potential exposure for owners may depend in part upon the nature of the contractual
relationship with the contractor and the project delivery
model. We consider below the implications for certain
project delivery models—including the traditional general
contractor model, the construction manager model, and
variations of the P3 model.
General contractor model
arguably, a traditional owner-contractor relationship (e.g.
a design-bid-build model, such as a CCDC-2 contract, or
a design-build, such as a CCDC-14) may be more prudent than a construction management relationship from
an occupational health and safety perspective, given the
greater degree of contractual separation created between
owners and workers on site compared to the construction
management model. Under the owner-contractor model,
the owner can more credibly argue that it has delegated
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control of the site to the general contractor (who is typically identi昀椀ed in the prime contract as constructor).
Ironically, the existence of an owner-contractor relationship of the nature described above is arguably less suitable
where the owner requires additional expertise. In contrast,
a construction management relationship may be more
suitable, in that it may require the construction manager to
prioritize the owner’s interest to some extent.
This is also problematic where the due diligence analysis considers whether the accused has e昀昀ectively monitored or supervised the constructor’s work. Where the
owner requires occupational health and safety expertise,
it is unclear how they can e昀昀ectively monitor or supervise
a contractor who owes a lesser obligation to pursue the
owner’s interests (compared to the construction management model), and who may have greater expertise than
the owner.
Unfortunately, the Court did not articulate the distinction
between control and supervision. The Oxford English
Dictionary de昀椀nes “supervise” as meaning “to be in charge
of somebody/something and make sure that everything is
done correctly, safely, etc.,” suggesting that 昀椀nal decisionmaking authority—or in other words, control—resides
with the supervisor rather than the supervisee. Similarly,
“control” is de昀椀ned as “the power to in昀氀uence or direct
people’s behavior or the course of events.” As a result, it
is unclear how an owner could supervise work without
retaining control, insofar as the term implies being able to
direct the constructor. A heavy hand by the owner can lead
to claims of interference such that owners may be better
served by robust monitoring rather than supervision.
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