Employer Liability at Shared Worksites Expanding: SCC Appears to Extend Schrenk to Occupational Health & Safety

In a pair of recent decisions originating from British Columbia, the Supreme Court of Canada appears to be putting employers on notice that their responsibilities and liabilities may extend beyond their own front door.

In December 2017, the Supreme Court of Canada released its decision in British Columbia Human Rights Tribunal v. Schrenk (2017 SCC 62), that we discussed in a previous blog post. The majority in Schrenk held that the Human Rights Code (the "Code") prohibits discrimination against employees whenever that discrimination has a sufficient nexus with the employment context — the takeaway being that discrimination in the context of employment is no longer limited to the confines of the traditional workplace.

Following on the heels of Schrenk is the Supreme Court of Canada's decision in West Fraser Mills Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal) (2018 SCC 22). In that case, a tree faller was fatally struck by a rotting tree while working within the area of a forest license held by West Fraser Mills Ltd. The faller was an independent contractor and not an employee of West Fraser Mills which, according to the Workers Compensation Act (the "Act"), was designated as the "owner" of the workplace.

The majority of the Court, however, affirmed the order of the Workers' Compensation Board ("WCB") penalizing West Fraser Mills Ltd. for the accident by relying on the "employer" provisions in the Act. The majority held that it was reasonable that the WCB hold West Fraser Mills accountable for ensuring the health and safety of all workers at the worksite, not just that of its own employees. The majority further held that extending the obligations placed on employers to owners of worksites furthered the statutory goal of promoting workplace health and safety and deterring future accidents. As such, the majority held that the WCB was within its rights to interpret the definition of "employer" to encompass West Fraser Mills Ltd, despite the fact that no actual employment relationship existed between it and the deceased faller.

The reasoning in West Fraser Mills tracks and expands upon the logic in Schrenk, whereby tribunals tasked with applying remedial legislation such as the Code or the Act are permitted to liberally interpret their enabling legislation in order to further the goals of the statute and the scheme built upon it. 

Schrenk and West Fraser Mills thus appear to put employers on notice that their statutory liability is no longer limited by the traditional employer-employee paradigm and that they should be cognizant of, and indeed take responsibility for, mitigating the actions and omissions of third-parties that may be considered to be sufficiently connected to their operations.


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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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