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Fatal Project Outcomes and the Role of Constructor


Ontarians will recall the tragic 2009 case where on Christmas Eve, four workers who had recently immigrated from Eastern Europe plunged 13 stories to their death from a swing stage while completing restoration work on an apartment building in Toronto. Numerous charges were laid including against the contractor, Metron, for failing to take all or any reasonable precautions such as ensuring the workers were adequately trained for the work or that a worker maneuvering on a suspended platform/ scaffold wore a full body harness connected to a fall arrest system. There were 6 men on the swing stage but only 2 lifelines. In a separate proceeding, the project manager was sentenced to 3.5 years in prison and was the first person to be convicted and sentenced for failure to ensure safety under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). 

In British Columbia, J. Cote & Son Excavating had a municipal contract installing a combination storm and sanitation sewer line. During construction, a retaining wall fell onto two pipelayers, killing one 28-year-old man and severely injuring another worker. It is alleged that the company failed to recognize hazards on site.  Nearly 11 years later, on November 14, 2023, the criminal negligence case against the company and its former foreman is expected to be heard by the B.C Supreme Court.

Recent Case

Projects across the country, no matter the size, must pay heed to the serious ramifications, not only for the victims and their families, but the impact these tragic circumstances have on the industry. Discussions concerning the importance of construction site safety often reemerge with the occurrence of tragic events, including a recent occurrence in New Brunswick that led to the decision in R. v. King.

Michael Henderson was an 18-year-old high school graduate who had secured a job working for Springhill Construction on a sewage plant project. The company contracted with the City of Fredericton to expand their Wastewater Treatment Plant. Jason King was the construction site supervisor. 

Part of Springhill’s scope of work was to build a large wastewater treatment clarifier, which looks similar to a concrete, circular pool-like structure.  The clarifier contained an eight-foot-deep, four-foot-wide concrete hole at its center with a pipe that ran half-way up and half-way into the hole.  King instructed Henderson to clean out the bottom of the hole. At some point, Henderson left for lunch and King decided to conduct a leak test which required inserting a large rubber plug and filling the clarifier pipe with water. Though King was aware that Henderson had returned from lunch and was working at the bottom of the hole he allowed the leak test to continue. Sadly, during the leak test, the plug deflated, and thousands of litres of water rushed into the hole drowning Henderson in the process. 

Trial and Ruling

Both Springhill and King were charged with criminal negligence causing death. On June 5, 2023, King was convicted for the death  and in September 2023 he was sentenced to a 3-year prison term. Justice Thomas Christie, in sentencing King, referenced the importance of both denunciation of King’s actions and deterrence as key factors in his decision. Specifically, that deterrence was necessary to convey to the public that criminal acts would not go unpunished and to avoid similar outcomes on construction sites in the future. King has since filed a motion to appeal his conviction and, as of October 6, 2023, is out on bail pending the outcome of the appeal.


The above cases, including the most recent conviction and sentencing of a site supervisor in New Brunswick, serve as yet another reminder of the responsibility involved with taking on the role of constructor, and in a more limited sense, an employer on any construction project. 

While it is the case that each “employer” at a project site has their own responsibilities for the health and safety of their workers, it is the constructor that has the greatest degree of control over health and safety of the entire project and is ultimately responsible for all workers.

One life lost should be enough to consider the immense impact and sometimes irreversible outcome of negligent behavior or an innocent oversight on a project.

A key piece of legislation that govern the actions of parties in control of construction sites includes is Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1 (“OHSA”) which requires that one person have the overall authority for health and safety matters on a construction project (the “constructor”). Section 1 of OHSA defines the constructor as “a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer”. Furthermore, OHSA also defines “employer” as including contractors and subcontractors. Put simply, a party undertakes a project if they assume responsibility for it. The constructor must ensure that all the employers and workers on the project comply with OHSA and its regulations.

Another important piece of legislation is the Code, which lays out in sections 217 and 217.1 the obligations of, among others, constructors given their position to direct how another person works or performs a task. Constructors have a legal duty to take reasonable steps to prevent bodily harm arising from the work or else they can be found criminally negligent.

It is probably the case that most owners do not begin a project envisioning a worst-case scenario of a worker losing their life in the process and, fortunately, such occurrences are exceptional. Still, the designation of constructor should not be a rote exercise. 

Both the owner and constructor should have a full awareness and ongoing discussions of the significantly increased risk that the legal obligation of a constructor presents. Also, how to improve systems to avoid these types of outcomes. Practically, the history of a party’s involvement in past safety incidents on a construction site should be a strong consideration in assessing the ability to fill the role of constructor. An audit of safety protocols of constructors and ensuring that all workers are trained in those protocols is another practical approach. Owners are not able to wash their hands of responsibility on the project simply by hiring someone in the role of constructor. There remains overlap between expectations of an owner and constructor when it comes to health and safety on a construction site, as recently affirmed by the Supreme Court of Canada in R. v. Greater Sudbury (City)

The City of Sudbury had subcontracted with a third-party construction firm, Interpaving Limited, to repair a water main. During the repairs, an employee of Interpaving Limited struck and killed a pedestrian while engaged in the work. The City conceded it was an owner of the construction project but not an “employer” and lacked control over the repair work. The SCC’s decision was split, meaning that there is no binding precedent for owners, employers, and regulators to follow. The Court of Appeal for Ontario decision has not been overturned. Therefore, as it stands, a project owner retains overlapping duties as an “employer” to ensure worker health and safety in the workplace under OHSA. 

The human toll resulting from flouting safety and accompanying legal duty becomes most tangible in situation like the cases described above. Based on the evidence available, there is no mistaking the fact that those deaths could have been prevented but for the action of constructors (and employers) that overlooked those duties and obligations. It is also not lost that these incidents occured on both major projects, where you might expect there to be more oversight or attention paid to safety matters, and small projects alike. No projects are immune to the worst-case scenario and so the safety protocols in place should all meet a similar high standard, notwithstanding the reputation and experience of the parties on the project or the scale of the project itself.