Supreme Court Ruling & Workplace Constructor Safety: Are You Liable for Contractor Compliance?

Mallory Hendry  00:00:00
Hello everyone, and thank you so much for joining us today. I'm Mallory Hendry, Content Specialist Manager with Canadian Occupational Safety, and I'm pleased to introduce today's webinar Supreme Court Ruling and Workplace Constructor Safety. Are you liable for contractor compliance? Today, we're joined by Peter Sturm, President and CEO at Sturm consulting, and Avetta falo, sorry, Avetta fellow, he'll provide an essential breakdown for you today of the recent ruling its implications across industries, and what you must do to align with the new legal framework. At the end of the presentation, Peter will also participate in a question and answer period, so be sure to type any questions you may have into the Q and A box within the webinar software. I'll turn things over to our host now to begin the presentation. Take it away. Peter. 

Peter Sturm  00:00:47
Okay. Thank you very much, Mallory, and thanks to Avetta and CEOs magazine and key media. We do have quite a few number of slides to go through, so please sit back, listen to the conversation, bring in the questions. We will give you access to the slide deck, so it's not a problem at all. And so just the agenda, it is action packed. There's lots of slides in here. I wanted to give you the information that I had to go through in looking at it. I do want to say, also, from the outset, that I'm not providing a legal opinion. What I'm doing is, is I'm looking at what the Supreme Court decision came up with, and lawyers been saying, you know, this is what you got to do and all that. But I'm bringing it to you from a health and safety perspective, from a safety professional and a practitioner perspective, because I think it's important that when we get legislation that's out there, lawyers will tell you that you should do all these things, but the problem is the how, and so I worked with some municipalities on this. The decision was originally with the municipality, but I think it touches on all industries that deal with contractors. And when you start to look at the constructor definition in Ontario, I have also had colleagues say to me, You know what? This is an Ontario thing, and so it doesn't apply to us. I think it might so at least take the opportunity to review it. So we will go over this decision it was the city of Sudbury, and talk about due diligence, because it did come into the Supreme Court decision, which is really, really important. We'll talk about some of the tools that are there. What is the impact for you? How do you ensure to do it? And what does it mean for you and your company? And so when you start to look at it, there are some resources out there, the Supreme Court decisions 120 pages long. And so my suggestion is get a copy of it, read it. I read through it multiple times. I do have to do a shout out to Jeremy Schwartz and Ryan Colin with stringer LLP. They were the firm that handled it, and they've been very gracious with the safety profession in sharing the information that they have, and they were there, and it's still an ongoing decision, so an ongoing issue, so it hasn't been resolved. And I also want to shout out to avetta. They provide all kinds of products out there for, you know, the contracting group and their their clients, and so does cos magazine. And so when you look at it, we're going to go into a poll question just to kind of get a feel as to what the audience is, and we can kind of go from there. So if you can kind of tell us, you know, how many contractors or suppliers do you have? And you know, look at it from the perspective of a global perspective, you might have two or three that are really major, but you might have 23 that are small. But just give us an idea. So if you click on the poll and it's happening in the background, and what will happen is, as they'll give us the results as to that what's going on. We will do also in a poll at the end of the of the session, but it is an opportunity to there to kind of find out what's going on. So we're looking at the numbers, we have over 273 people here that are with it. So most, most organizations you know, are looking at the 11 to 50 contractors that they have. Some have 500 plus, which is an amazing undertaking. That's 7% so when you start to look at the numbers up there, and we continue to use contractors and suppliers, more often than not, they are part of the supply chain, but there are obligations from a health and safety perspective, and I think the Supreme Court decision will kind of get us to go from there. Okay, so one of the problems that I had was, is that, as a safety professional and not a lawyer, how do I take what the 120 pages had in them, and bring it down and distill it. So I use the tool that we use in health and safety, the Plan Do Check Act approach, and it really helped me. I struggled with this issue of how to put it together, how to take the different pieces of legislation and start to put it as to what we do today and how we move forward. And so that was just one of the things. So before the discovery decision was, you know, a company, an owner, could contract a constructor to come in to do a construction project. And there are definitions of it, and we'll give it to you there. And the health and safety responsibility went from that owner or company to the contractor, and they were responsible for those health and safety issues. And. And again, they gave complete control the project to the constructor, because the feeling was that they knew what they were doing. They're specialized in the areas, and the owner had no control over the the site. And that was before that the the Supreme Court decision. But that has changed for it with respect to situations that are happening. So the Sudbury event happened in the downtown. There's a $1.6 million project. They had done previous work for this, for this client, and they had identified in their their documents, that the contractor was the constructor and but the city had inspectors, and you'll usually have on any of these type of projects, you'll have the client individuals come in, and they're pretty usually project coordinators, or whatever that would come on the site, and would, you know, review what's going on? Are they using the right concrete? Are they using the right steel? And so when you started to look at that, but they had no role in in with health and safety in the project, you know, but in this situation, the contractor employees operating the grader didn't use the in the contract, it's stipulated to have a traffic control or signal with the police and kill the pedestrian, so it didn't even involve a worker in it. But the contractor was fined and for failing to comply with the construction project for $195,000 but the Ministry of Labor at that time also laid six charges, three as the constructor and three as the employer, for the owner. And so again, it got appealed, and it went all the way up to the Supreme Court. And as I said, Jeremy Schwartz and Ryan Conlon, if you want to hear a good session on it, they do it quite often. It's worth it. So it went all the way up to the Supreme Court. November of 2023 there's usually eight judges, sorry, nine judges. In this case there were only eight. And so they, you know, and they provided two different decisions and two different positions. So when you look at that, it's 5050, so of course, judges supported the Ontario Court of Appeal decision and said that the client was an employer under the occupation Health and Safety Act, they were liable for, you know, the actions of the the on the project. And they said they didn't want to create these silos a client to figure out who it is. You'll have multiple players on there, so you had the employer and the owners and the constructors, and there should be overlapping responsibilities. And again, it's worker safety that's important that you want to protect, and the employers could fall back to due diligence, so the employer, and this case, the client or the municipality or the the owner, could if they could demonstrate due diligence, then they would be somehow exempt from what was going on, foreign judges felt that the owner of the city can take a hands off approach that they call this belts and brace braces, the argument that you can't have it's not realistic on a construction site to have all these different people managing the health and safety issues. So it limited the benefit of imposing liability on the client group. And they felt that the ministry's approach would be challenging if all owners were considered an employer on a construction site, and you get multiple trades, you get sub trades, you get all that kind of stuff, and that it would be impossible to do there. And they were also looking at the cost, so it got a definition there of the belts and braces. So what happens is you only had eight judges. There was some cases going something going on. So it reverts back to the Ontario Court of Appeal decision. And so in what municipalities have to follow is a binding legal precedent. And they also refer back to the case of 1992 the weissen case, where the employers are the virtual insurers of the employees of the contractor and the Sudbury case, you know, will vary across the country. I have talked to colleagues across the country, say, in Alberta and BC, they say, well, our systems are different. It doesn't apply to us. But there are some things there that the Supreme Court decisions do travel across the country. And so what are these health and safety responsibilities that are there. And so when you look at the Supreme Court decision for construction projects, the owners knowledge and you know and skills, which is the definition in as being competent, you know, and can they foresee the possibility of an incident happening in a workplace, and owners have a degree of control over the workplace or the workers, and many owners would delegate the control to the constructor, because they would have the expertise. You're bringing somebody in for confined space, and you don't understand confined space, you hire a contractor, you hope that the contractor has that experience. And so you know again, what are the steps that the owner take what are the reviews, the due diligence activities, and I'm going to give you some of those tools that we've been able to come with. And so can the owner effectively monitor and supervise the work of the construction worker, of the contractor, but not be responsible for it? And we'll show you some ways that. Happen. So the issue of due diligence, those of you not in Ontario, there is a definition of an employer, and there's a strict duty that they're to take every reasonable precaution. And most legislation across the country has that the offenses of penalties was specific to the duties of the constructor, and so it shall be the defense of the queues to prove that every precaution was reasonably taken in those circumstances, and that's where the Ontario Ministry of Labor looked at proceeding with it. So there are ways though to develop your health and safety program with a due diligence defense, and going from there and again, identify the owners and employers what is reasonably expected, what are, what is reasonably impractical for the for the owners of the the or of the project, and again, if they're considered to be the employer in those circumstances. So how do they prevent the on the contractor, employers, the constructor, employees? But also in this case, it talks about the public, so we need to kind of start to include that as part of it, because someone, whether they're an employee or a member of the public, getting run over by an excavator, the outcome is the same. So again, and so those precautions should be taken in there, and that applies to all work situations, even if it's not mentioned in the legislation. So again, and you can do that on a case by case basis, and that what we have done with some of our clients. And so what we started to introduce was a pre work hazard assessment for bids and tenders, identifying possible hazards. And doing that kind of assessment. I'm going to show you a tool that we've kind of put together. But also what you're doing is you're it's a communication information tool for the constructor to understand what those hazards are. So as the owner, you've done a high level assessment, and this will be done either by your procurement people, your engineers, your safety people. There's so many individuals in those organizations that can do that, and again, provide some follow up as to what's going on. And so this is an example of what we've kind of took it's a generic form. We looked at the hazards, created a checklist. What you could do is that when they're going out to measure how many feet of bridge they've got to look at and looking at the concrete and where they're going to put asphalt down yet slap this on the back, and they can do an assessment that can become part of the bidding process. So now, as a owner, an employer, and you know the client, for these constructors, you have done at least some of your due diligence efforts to to move it forward. And again, it is a good legal defense. And if the employers found not guilty, you can prove that due diligence was exercised. You've done everything that's been reasonable in this situation, and you've been proactive and preventing situations that events will occur. You can also look at it from your insurance perspective, that if you are named where a member of the public is hurt, did you do your assessments, which were done before the work was actually done. But we'll talk about some of those areas. Another area that we focused on was when employees of the the owner, you know, of the municipality, in this case, you know, can they see, or when they visit the site, can they look at some of the health and safety issues? And we're not looking at an audit, we're looking at as they're coming in, are people wearing their PPE, are, you know, is the equipment? Are people working at heights and are tied off? Are, you know, flammable stored in proper areas? So looking at potential harm, and again, it doesn't have to be a health and safety perspective, professional perspective, but everybody should understand what the hazards are in a construction site. Like, how do you expect a worker to be working on that site and not knowing what those hazards are? And so again, looking at the prevention element, for me, it's always more important to do the prevention of the put for the potential of someone getting hurt in your workplace, and that can include members of the public. So what was the driver for this change? And again, in the Sudbury situation, it was a member of the public pedestrian killed by a reversing grader. And there were provisions in the contract to have either spotters behind the unit or to have police close the road. And it wasn't done. The contractor equipment was driven by an employee. The constructor was hired by the city. They act. They agreed to act as the constructor of the project, and they directly employed construction individuals the city did that were doing looking at quality of the work being done. So none of the constructor, you know, on the project, and they weren't directing anyone to do anything. If they saw a hazard as anyone coming to a site, they were to report it to the site supervisor. It is up to the constructor and the site supervisor to deal with it. So this was the basic decision of the Ontario Court of Appeal that, you know the quote, they had a. They were employing quality control personnel on the site, and they were liable as the employer for the health and safety on that project. And that was kind of, you know, the where the whole case and the 120 pages of it, but you need to read through it, because it does really, for me, it was really an awakening as to how the judges were looking at the facts of the case and then the law and then bringing it together. And they're not safety people. They don't kind of live with our day to day stuff. So it was really an interesting exercise for myself, so looking at things like roles and responsibilities. So as part of our program that we were developing for some of my clients, we started to do a looking at a pre work hazard assessment form, which I showed you a copy of, and again, doing periodic sites to the business sites. I know that as a owner of the facility that's getting the work done by the constructor, I need to make sure that they're doing all the right things with respect to the materials, you know, keeping the clean work sites, all those type of things. So why wouldn't I look at the health and safety part of it? It's not that onerous to do. And again, if the site supervisor, the constructor, will be notified if there are any issues when there's a walk around. And again, for the bidding process, giving a copy of this pre work hazard assessment so that now you, as the owner of this facility, say, Hey, we've taken a look at we need you to build a bridge. We've looked at the material requirements and all that. But as part of the bid, also, we've looked at the hazards in the Ontario occupation Health and Safety Act. Also, if there are any designated substances, they need to be identified and so, and I would include the public also. So if we are going to build a bridge and we've got to close lanes on the road, what is that going to mean from the impact? And let's discuss that, because there are going to be costs associated and getting the project done. And again, so the constructor the general contract should, you know, comply with the contract, you know, comply with the health and safety requirements to their health and safety program, but also, you know, for any visitors or anyone that's on the site, look after them, and again, acknowledge what their responsibilities are as a constructor, there is a guide for health and safety. Health and safety guide for constructors on the Ontario government site, suggest taking a look at it and ensure that all documentation submitted to the project manager prior to starting the work disclose any hazards. Okay, they should be identified. We had a good situation just outside of Toronto where they were working on a storage sewer system, and next to it was a water holding pond. And as they were doing the pipe in there, they're doing some excavation on it, there's potentially the issue that the ground, because of the groundwater there, would create a collapse. And it did. There were four workers in the excavation at the time. Two of them perished, and it became a big issue. So there are things that you can observe on a construction site that could be decided near it or have an impact on it. Also do periodic unannounced site visits and observations, and we kind of kept it to that we're not doing audits. What we're doing is we're going in to observe the work that's being done, but also to validate that the health and safety requirements are being met. This is great information when you get to the next year, when you're doing your bidding process as to, should that constructor be allowed to bid on the jobs, so kind of things that are going from there, and so when you start to look at that, you know, there's good stuff in there, from that perspective, also, as we're going through, I saw just now that they posted the link to the Supreme Court decision. So take a look at it's easy, or you can Google it. Site supervisor has always been critical, you know, in a workplace environment, especially in construction, and so they're responsible for that site, or somebody that's designated. I know at times, and I've been on construction sites when the supervisors aren't present, but there are workers working, and especially with some of the trades and the sub sub trades, and if there aren't, they should assign a competent employee to make sure that the contractors work is being done in a health and safe manner, must also ensure the training is being done. And I'll show you some of the tools that we kind of develop. Many organizations that have contractors or service providers come in, usually have some type of an orientation process or again, a lot of times, the reliance is on the individual contractor having their trained employees. It's hit and miss. I will tell you from my experience in doing workplace audits, and I've done over 1000 them, whenever I saw service providers or contractors on sites, you know the it varied, but then some. Other organizations do a really good job. And again, the general contractor, if they hire subcontractors on the site, they need to make sure that they're looked after, that they understand what the hazards are in the workplace and moving from there. And again, it was just interesting. This is from the Ontario government of looking at the owners, the employer who assigns, you know, the work to them. So there's some good definitions in there. However, you know the general contractor and their employees, they direct the work. And we, we in the wording that we did with respect to the constructor program was it was the responsibility of the contractor to look after that. And again, the company employees should get specific training. They should have their own training that they have in their organization, plus the training somehow and orientation by the owner of the facility or the owner of the project that's going to happen. So talk briefly about it if you want to find a really good approach to doing your hazard and risk assessments. You can go to CSA standard 1002 hazard risk assessment. It's available for free on the CSA website as a read only. Here's just a screenshot of it. You can go into your workplace and develop the whole part. And what I like about it is it gives you a step by step approach to getting there. There are clauses for each of the steps that are there. It gets into the hazard identification, then it gets into the hazard analysis. It gets into the risk analysis and evaluation of the risk and you systematically go through that. Now, as a large, you know, municipality or company, you can establish a process and it will usually repeat itself. There will be a non anomalies with different projects or different things that you need to do. But I'm telling you that the standard is out there. It's a very good tool, and you can get it on the CSA website, access for free. Please take a look at it with all the other ones. One of the things we did is when we started to look at, you know, we can't look at everything, but there are specific health and safety tasks that are critical, and some organizations call them life critical tasks and risks. Some organizations that if one of these is violated, your employment or your your being a contractor in the site is is terminated. But again, looking at energized electrical work, breaking lines, you know, operating cranes, that kind of stuff. So this was kind of focused on the constructor type of things that would be happening. And again, working at heights is a big one. We see a lot of events there transportation. I've been on a lot of construction sites where, you know, the the space is small, there's moving traffic, there's public walking through the area. There's all kinds of things that happen. And again, looking at the list, these are, this is kind of just a, you know, at the site, the biological hazards, if there are any, what are those hazards? Conditions, public safety is added on to that. I know that with a lot of in my teachings, with the courses that I have, and I always talk about, do you look at the public? Because that will start to get to different areas out there, procurements a big area a lot of times. You know, again, they're part of that process, whether it's for the purchase of your safety equipment, but for your bidding process, okay, they're the experts in it, so you need to involve them. You need to educate them on what those health and safety requirements are, and you need to have them put into there what those evaluation pieces that you're going to have, because you want to build the due diligence piece in your procurement piece. And for most organizations, there are different approaches there. I know that with the municipalities, one of their associations actually has a template they use, and it has different sections, and you can modify it for your need. So there are tools out there that you can use to kind of get from there. So when you start to look at it, and I it's the safety professional needs to now go beyond just the health and safety part of it, they need to look at the legal, the financial, the operational contract that happens with constructors, and you need to engage them. Your legal department needs to review it on a case by case. Okay, contracts are big. They're millions of dollars. I deal with the chemistry industry. Their their projects can be eight to ten billion so when you start to look at that now, a lot of times corporate lawyers deal with corporate things. They're not that well, they probably do not get any instruction in there when they go to law school on health and safety. They need you to help them to do that. But they need to provide, you know, provide you legal assistance, and you know, again, and the obligations to provide copies of any legal things that happen, like ministry labor reports or regulatory things that happen. And so that is why I'm saying to you that I'm not providing you a legal opinion. I'm taking, telling you that we're taking a legal decision. And. And lawyers have told us what we need to kind of get to now, how do I operationalize it? And that's what we were doing with with this process here. And you should be able to get any copies of the reports that should be part of your contracts indicate that you know, that the the owner, the client, will not, you know, interfere with the the constructors obligations the constructor is to control the health and safety requirements for the employees, but also the public safety issues. And if there are any issues that we see as the owner, we will tell the supervisor or the site or the constructor that they need to address them. And there are penalties, I know in the construction sector, if you do not comply, you don't meet deadlines, you don't get the job done, right? Well, health safety is really important. If you look at what those scenarios are that do come up. And again, under the contract, the city is the owner will comply with the directions of the constructor. And again, looking at the, you know, any safety of fractions or of any of the subs. Also on the site what will happen there, and have specific language outlining the rights and limitations of the owners. And again, the constructor is responsible, and you will hold them accountable. And how do you hold them accountable? Is you you've included in the contract, you've given them a pre work assessment. You're looking at them to do an assessment when they get to the site. So there are these steps and the pre qualification piece that it's carried out for every process. So when you start to look at the decisions, it is, you know, it is really important to get there and the owner doesn't interfere with it. It's the constructors obligation to do that, to look after the workers, to look after the public safety on the sites. And then, you know, looking at and that company, you know, the organization or the client or the owner, will be visiting those sites to observe and document. And again, when you look at it is, you know, the reporting of the issues of what they're not doing well. But I think it's really even more important to document what they are doing well. So that gives you that due diligence defense, both from a health and safety perspective, but also from a insurance perspective. And again, looking at the health and safety program, you know, the when the employee, the the owners, staff, are coming on there, they're to follow the health and safety rules there, to where the PPE there, to report to the office that they're on the site there, to follow the rules that are there. There's moving equipment, all that kind of stuff. And so have you know so the company, the operations and the construction project that any staff to have a responsibility and accountability for the workers. And you know, it is up to the constructor to enforce those rules on the site. We developed a contractor program. And so when we started to look at, you know, the things that are there under the health and safety legislation, you know, we do have contractors and service providers that come in for short term work, the painter that comes in, the electrician that comes in to wire, you know, a new component on a piece of equipment. So rather than trying to create two systems, can we get that system so we have one? So one of the suggestions was to kind of take the same steps that you know, contractors that are coming on the sites, even though we are the employer of that site, because it's our site. But can we take those due diligence steps to incorporate for all our contractors that are coming in site, the ones that are the big projects, that are building roads and bridges and all that kind of stuff. But also the ones where the guys coming in to service a piece of equipment, change a pump, on a on a on a piece of equipment, and moving from there. And so again, you know, starting to look at, you know, it doesn't apply that they're a constructor, but they are contractors. It's not a project. So what we started to do. And here's the definition of what a project is. You know, it's building a bridge, a structure. These are major things, excavation, highway, your cofferdam, sewers, whatever. But if you're doing a major expansion of your facility, you might be doing things like water mains or services connections or electrical cabling in or ducts of different types. So, you know, looking at that, we need to kind of, you know, do we have a one size that can fit most situations? And I think that's the thing to do in looking at when you're going from there. And again, the impact is that, you know, your employees are working in the same facilities as these contractors are and service providers. They should be aware of those so there might be some training and orientation that you would do is that, hey, we're going to be doing a refurbishment of building number 52 there are, you know, there's asbestos in the building, or we're going to have contractors doing conduits, or we're going. Have, you know, a new mezzanine built. So what are those things so that the employees are there, your employees are aware of what's going on, and ensuring that you know, the same actions that you're taking to protect your employees are also done to protect the employees of the contractors or the constructors and again. So orientation, this is a simple example of, you know, contractors attending the orientation training, and things like the health and safety responsibilities, the hazards, which you can I think you need to expand on what's your drug and alcohol policy. So those are things that can get communicated. But I just want to kind of give you a show you an example, the legislation that we looked at as we're going through with, the Occupational Health and Safety Act, the construction projects regulations, the industrial regulations, designated substances, you know, you might want to include your Workplace Safety Insurance Act and clearance certificates if you're doing stuff on the road, the Ontario traffic manual book seven is kind of the the book that everybody follows, and it talks about the different setups, and then your witness regulations. So one of the things to kind of look at is that we're going to develop also as we go forward, is how do we evaluate whether things are working or not? And so we've got the site visits, which are, you know, a snapshot on that day that we've been there. So if we've been there, this today, at 12 noon, this is what we observed, things that were going well as well as things that need to be improved. Then looking at program evaluation. So at the end of the usually the summer months, or the program year, whatever it is, some most companies, it's down into the November, December. Let's evaluate how our instructors and our contractors are performing great due diligence defense, right? And then, if you want, there's another step that goes with it. Core has a section in the core audit that you can incorporate as part of it, and I would include, so now what you've done is you've got the one, the immediate that's happening at the site visits, you've got the program evaluation of the overall program, and then you've got your core and your certification process that you have met the requirements for that. I believe that's a great due diligence defense, and should be able to justify the actions that were taken by the client group, but also you help the constructor and the contractors to be the best that they can be. They have an interest to be safe. They have an interest to do things that you know are creating value for them as an organization. They have real big interest in making sure their clients, in this case, the municipality, is happy, right? When you look at what those costs are that are associated with, with going into, you know, into the court system, and looking at that, and from a perspective of, if you're killing a member of the public, it's not the contracting company that usually gets the the flack on it, it's the municipality. So again, it starts to create. So now you can say, this is what we did, and this is what we did, well, and it's a great communication tool for the organization. So you know, doing the site visits, you can do the pre work assessment before the construction is even done. You can share the pre work assessment with the contractor and even ask them to do it. And then, even before the contractor gets the site, that's the third time they do a pre work hazard and risk assessment before commencing the work, the site is going to change, okay? And when you look at the business building the bidding process, so if you go for a bid in, say, March of this year, and then the work starts in May, and then, sorry, the bidding starts and gets done in May, and then, you know, you do the work in September. That's been a long time, and things can change. But again, you've got your project managers, your coordinators that can do site visits, you can do health and safety visits, and I think that they're really, you know, really helpful in trying to move that forward. And so what does it mean for the company and the safety profession? I will tell you that, you know, I've done some work in the construction sector and also with the municipalities, but it was really, really an eye opening for me to go into the Supreme Court decision because of the detail that was there. And I kind of got into the mind, the minds of the eight judges that were there, and what are they looking for? And I think they're looking for things that are reasonable, but they also want to make sure that the accountability and the roles are there to ensure that the workplace is safe and that the public is safe in those scenarios. And so, you know, again, it just makes you can be more efficient. You can be more effective. There are these pre qualification things I know with you guys that are with the Vetta, there is a kind of a pre qualification for your health and safety program. But this starts to build the system, and it becomes your health and safety system of bringing it together so that it makes sense. It. If you make it disjointed, it's very, very difficult to be able to bring it together. So, you know, in working with this and working with a client and putting this program together, and there was some stuff that was already developed, it was just tweaking it a bit. And again, the team, you know, the owner, employer, team on the construction site, can ensure the safety of the workers in the public and if you are, especially a public serving organization, and if you're not, even if you're selling products or whatever, I believe that it's really, really important. So want to get to quote to pull question number two, if I can get the team to post it up there, it's there. So you've heard about this, about what we've looked at. So how confident are you with your contractor compliance strategy, and does it align with the Supreme Court ruling? Because I think there's some really good nuggets there. I will be honest. I have been challenged with the number of events that have been happening in the construction sector. When you look at it, when you look at the workers comp stats, the numbers are high. And I think there's a way now to bring accountability on all sides and a checks and balance that will get us to having safer workplaces, both on construction sites and also on the other areas, I'm getting an error here. For just those on site that they're having a problem with the poll question, see if they can get a go. Oh, here it comes up. Okay, so 67% of you say you're somewhat confident. That's good. I'm glad for you there. But there's another what, 30% so 30% or 18% are very confident. So we're looking at good numbers. You got the 15% that aren't it's, you know, take a look at the Supreme Court decision. Really look at that. If you are a municipality, there will be, you know, if another event comes up. Now this goes back to November of 2023 so what's interesting is, and the actual event that happened with the the pedestrian being killed was back in 2020, 2015, so it's, it's 10 years ago. It's taken that long to go through the court, court system. But it's really, really an interesting area to go there. So just to kind of summarize, I do want to leave some time for questions. We've got over 20 minutes here. You know the Supreme Court decision, I believe, for the health and safety practitioner out there, and for your people in legal, and your people in finance, your people in operations, your people in procurement, okay, and quality, because this is great data for your quality program. And you know, the Supreme Court has said due diligence is the best defense that you can have. So we can put in the tools to make sure that that's happening. And what I really like about it is, is that if we have a problem, we deal with it right away. We talked about contractors and constructors. We talked about, you can create simple tools to be able to do that, and then we start to look at, you know, building that program and the training and the orientation, there is a bit of upfront work to do it, but I think the value to the companies is going to be phenomenal. So let's move on to questions. I've just been looking at some of the chats internally with us, and there's, there's been some stuff going down. Gladly answer any questions that I can.

Mallory Hendry  00:38:25
All right, we have a few here for you. Peter, um, somebody's asking for a little bit more information on providing the hazard assessment to the bidder ahead of time. They say that they review the contractor hazard assessment, because they don't dictate how they will execute the work, lay enclosures, et cetera, and they see the contractors plan and provide feedback and approve based on their execution plan. So I'm assuming they're asking, does that sound like a good approach to you?

Peter Sturm  00:38:56
It is a good approach, but it's kind of a response. It's a response and a reactive approach rather than proactive. So one of the things that we develop with this client is is that when our team members are going to go out to do the preliminary work before any of the bidding, we've got $2.1 million to build that bridge across that river. You have to go out and you have to take a look at it. There's engineers out there. There's assessments going on, that's the time to do your assessment. There. A lot of times we rely on contractors being knowledgeable about the hazards that are there. I will tell you a lot of times when I see procurement projects as cheapest price, and a lot of times they don't have it. And when you look at a lot of construction projects, also is there's a flow, you know this, you know. So when a project comes up, or say, $2 million it may be one person from head office and the rest coming in from either, you know, the trades or are brought in by a sub. So they could be different on a construction site. Week to week, the employees can be different, just for the different types. Of work that are going types of work that goes on. So my suggestion is, just do it. It's not hard to do. You can have your team members there. I think it also informs the bidding process, because what it does is, now you know, are you getting value for what you're going to see there, and if there's going to be issues, like the situation that was happening out in in east of Toronto was that, you know, nobody took into consideration the fact that, you know there was groundwater there, that it might be more expensive to do an excavation. So my suggestion is, if you identify that hazard, now, the the instructor and you as the client can make the right decisions. I think what you do is data. Data drives everything, and good data drives good decisions. 

Mallory Hendry  00:40:48
That's great advice. Thank you. Some more here. How does compliance work when it is a federal work site and the federal employer has different safety requirements than the provincial contractors, are there two different sets of rules in those cases?

Peter Sturm  00:41:04
So that's a really, really good question. And I know I've had colleagues doing work like, say, at the Toronto Airport, right? Airports are a good example. So let me give you an example that I kind of think of is, you've got the airport is federally regulated, right? It's because of what they do, with the cross borders, but the airport is regularly is got regulations that are provincial statutes. My suggest is always take the highest standard. The Federal ones sometimes are little more wishy washy that I've seen, and the provincial one is higher. But you know what the those are only so when I look at legislation and compliance, I look at them as the minimum. Okay, we are not minimalists in health and safety. We want to be the best. So look at your health and safety program when you see those gaps in, whether it's provincial or federal, fill those gaps in. And so when you do that, and that's where your pre work assessments going to say, hey, you know, the provincial legislation says we have to do this. A good one was the changes to confined space. They change the regulation. So I know in the oil and gas sector, the confined space standard for the industry was high, but then the provincial standard came in and it was lower. So I'm saying, you know, why would we go to a lower standard, whether it's federal or provincial, go to the highest standard, and then you don't, you can sleep well at night, and it will serve you well. I have as yet to see where it won't. And if you exceed the minimum, you have a great defense from a due diligence perspective.

Mallory Hendry  00:42:37
That's a great point. We have a clarifying question here, are you suggesting that construction inspectors should include some form of a safety component to their project? Inspection, slash tours? 

Peter Sturm  00:42:51
Sure, yes, because they're they're a worker under the Act Okay, when they're going on to these sites, and because it's a constructor that is managing the site. I will tell you that when I as as someone going on to a construction site, as an employee, I would bring my own personal PPE, I would look at that, and I think that heightened awareness will bring a certain respect of those inspectors on the site with the constructors, because a lot of times you'll hear, Well, you know, they got these rules, and they don't. They don't make sense for construction. Well, if you understand what the hazards are, then you can have the conversation to address the hazards, look at the risk, and then put in the controls that are going to help both the client so that you're not running over members of the public or their inspectors, and it will help the constructor from not having scenarios where their employees are getting hurt. Shutting down a construction site for an injury or fatality costs a contractor, but it also costs your client. And so what does that say with respect to your relationship, that if your people are getting hurt next year, maybe you don't get included on the list for bidding. I mean, that's becoming the reality that's out there. So really, really good question. I'm not saying them to be health and safety professionals. What I'm saying is that they should be aware of the hazards. They should be able to identify the risks and what are the controls, and if they can't, then they should be going back to the health and safety people that either on the construction site, because there should be someone there, or to the person there, and just ask the question. I believe health and safety is about asking questions, because when you ask questions, you get answers that satisfy the decisions that you're going to make.

Mallory Hendry  00:44:39
Sounds like a good best practice for sure, what is the overlap, if any, on the Supreme Court decision in relation to work that falls under Canadian Labor Code part 2.

Peter Sturm  00:44:52
So Canada Labor Code is the federal so it's again, the same question there. You know what I look at? I look at it this way. Right, if it's a if it's a local decision that's made, and we'll kind of look at it, but when I look at a Supreme Court decision on health and safety, and I will tell you, for me, it was just enlightening when they started to talk about the different nuances, that kind of gave me an aha moment with respect to the legislation that's out there. Now, I don't agree with it all the time, and none of us do, but what it does is that I may not agree with it, but I understand how they got there, and that's what the Supreme Court decision has done for me, is that it's given me the opportunity to kind of look at things. I mean, when you look at the health and safety legislation that we have came out in the 1980s right? We had the commission up north. And so what happened is started to create the health and safety legislation that we have as of today. And so I was just trying to remember the chap, and the same thing happened in the US. But if you look at the health and safety legislation across Canada, most of it is pretty similar, and I always go by the high standard. I mean, I might be doing something in Ontario. I'll look at something. Hey, BC is doing some good stuff in forestry, but why wouldn't? Why wouldn't I take those best practices in corporate in there, even though it's not in the legislation, but they have probably learned the lesson the hard way that can help me to reduce the pain that's going to happen to me. So when you start to look at the legislation out there, you know, and especially federally regulated versus provincially regulated, you know, your hazards are your hazards, or your hazards. I don't care where you regulate it. And then when you get to your risk assessment, it's a guesstimate as to what you determine as the risk, what are the consequences, the potential and the severity, but then what are the controls I'm going to put in place? And we guess wrong sometimes that's, you know, that's the way health and safety is. But I think that with this situation, with respect to I've, I've struggled with the construction sector to understand like, you know, in the old days, you'd have 100 people on a building or on a on a construction project. Now you got 20. It's mechanized. It's very heavily, you know, dependent on on equipment and systems. But the numbers are still there. So I think this way of looking at the hazards, the risks and the controls that are, you know that you're doing with your pre work is going to go a long way. Sorry, that long, that long answer for this question.

Mallory Hendry  00:47:28
No, no. It was great. It was great. And someone's asking about the responsibility of a contractor when dealing with a sub, of a sub,

Peter Sturm  00:47:38
You know what I mean, that comes up all the time, and a lot of times it's it's interesting that, you know, I've had conversations with constructors, with contractors and subs, and a lot of times they feel like and supply labor is just another one, but it's a similar type of situation, and a lot of times they feel that they're not important. And I think what will happen with the approach that we've taken here with respect to constructors, is that what we're saying to them is you're important to us and so and my lesson from that came with some of the chemistry clients that I work with. There are companies where somebody will be a contractor or a subcontractor on a site. They all wear the same clothing. They all are responsible for the health safety at the same level, and there's no difference. And I think that's what what we need to have happen is that contractors and subs on sites are people, and we don't treat them any different. Their health and safety is just as important for them as it is for us, and we have the obligation, because we have the tools to do it, to make sure that at the end of the day, they go home. And for me, when I look at the failure the system, and if your clients, or whoever these groups that these contractors are working for are not, are not feeling or seeing the importance of you as contractors, as being people and your safety is important, then I think you need to kind of look at somewhere else. I know it's a hard thing to say, but what I'm saying is, is that we need to treat all people, all types of work and constructions. It's a difficult job. I've done that. That's where I broke my teeth. Was working construction. And so, you know, we need to treat them as people. We need to make sure that they they understand what the hazards are in the job. We need to give them the tools to address those hazards and address those risks. And I think this is the way to do it. And I think the Supreme Court has said that, have you done everything reasonable? And everything reasonable is to protect those workers, so it all falls into place.

Mallory Hendry  00:49:45
Yeah, that's good points there as well. Someone's asking, if you do provide the hazard assessment ahead, doesn't that engage the owner or client's liability?

Peter Sturm  00:49:58
I think it protects your liability. So what I was saying with the pre assessment, it's the client doing the pre assessment. I, as the owner of that project, do that assessment. So when I, when I do a, when I do a request for proposal, do I give the contractor all the information they need to put in a good bid, or do I give them mediocre information so that their bid one, the price might be the same, or they might not be able to do the work. So I think what you do is, by doing a good pre work assessment, you're identifying the issues that are going to come up. And so when you look at your procurement people. I've dealt with procurement, and I've had my challenges with them, because they're looking at a piece of paper. They're not looking at the reality of taking that piece of paper with that money and finishing building a road or a bridge or putting an addition on a building, right? They go, they want to go for the cheapest price. And I think that's a mistake that we've had, and I've gotten into arguments with people in procurement. We need to make sure that if we do a good and it's just a guesstimate, it is just for information purposes, and what it shows is that you as the owner, have looked at the work that's going to get done and identified what those hazards and risks are and and we know that when you do these hazard and risk assessments, they're a guess at a moment in time, things change. But the defense to say, look at when I did that assessment in March of 2025 and they went to they did the bidding in July, and they did the work in September. Things have changed, but I did everything reasonable at the time for that work. And I think that's really important when you start to look at liability. I mean, lawyers will love to do that. I would love to see the day where, you know, a contractor, constructor and a municipality work together. They assess the hazards they put in the controls, and they knew what the controls were in the Supreme Court decisions, they just didn't do them. Because if they had done them, the pedestrian wouldn't have been run over, right? So when I look at that, if I'm looking at a defense, looking at it from, you know, just kind of breaking it down, if they had done what they said they were going to do, that pedestrian wouldn't have been killed, hopefully. So I think it's just a good approach. So liability, I think by doing nothing, and you are going to get a lot of people that, and I've seen it in the health and safety field, is, well, if I don't do anything now, and I you know, the problem might go away. I will tell you, it never goes away. It might not bite you today, but it will eventually bite you sometime, and it'll it'll hurt. It'll be painful.

Mallory Hendry  00:52:42
Hey, someone else is asking about the if there's a definition of competent person. So knowledge, training, skills are all subjective. How do you sort of quantify those criteria?

Peter Sturm  00:52:54
Well, that's a good question, I mean, and I don't want to deflect the questions like it depends when you look at when you look at competency. But the thing is, is that when you look at the hazard and risk assessment that we do is that if I assess what that those hazards were, or the requirements were, and I and I did a systematic approach of looking at in that chart that I showed you on the CSAs said 1002 and then I went before a judge, and I said to him, him or her, I said, you know, at the time, this is what I had with the information, this is how I did my review. And here are my decisions. You may not agree with them, but with what I had. And it's easy to second guess. We always get that all, you know, wow, they should. All I'm saying to you is, is that, with the information I had at the time, I took action, I put it in play, I reviewed it, and I put it in place. What happened with the Supreme Court decision? Now, again, I'm just reading from that point. I don't have the investigation report or whatever, but the contracts did stipulate that they were to have, you know, someone watching equipment that was backing up and or to have police close the road so there were control measures identified to address that issue. So it should have, you know, kind of thing. I don't know if I answered the question all the way the question again was?

Mallory Hendry  00:54:19
I'm sorry, guys, I think it went over to answered. Let me find it here. 

Peter Sturm  00:54:25
Oh, don't worry. If I didn't, someone can ask it again. 

Mallory Hendry  00:54:28
Okay, all right. And somebody else is asking here, do you recommend having the contractors review applicable company policies as part of the orientation if they are licensed contractors. So for example, giving a licensed electrician your arc flash policy to read, they're just concerned that it might make the orientation too cumbersome and reduce buy in from employers.

Peter Sturm  00:54:54
So really good question. And we do have people that are licensed. We have people. People that have designations, and I understand what they're saying, but you can do a workaround. So I mean, especially, I would do it maybe for the first time, and then if you know that they've been following it. I mean, when I look at the number of electricians that get that get have flash burns, I'm amazed at but it goes back to the issues of lockout tagout, which is another issue. You can say that this is what you'll be required to do, and do you understand, and if they agree to that, and then the process shouldn't be that long to go through there. There should be just a way of you saying, Hey, we discussed. We know what the hazard is. They're going to be working with electrical. Work. We know that there are control measures, like lockout, tagout, whatever. Now you get into things like utilities and all that, it's a whole different process. But I'll tell you that their processes are defendable because there are codes of practice, and there are codes out there. So a an electrician. And I've seen electricians working on panels live and going, okay, so what is the requirement? Yeah, I mean, so do you want to save time, or are you confident that they're going to do it? And I think that's where it goes back to that evaluation piece. Because when you go out to the site and you see them working, you know, with the potential for an electrical flash, your evaluation process should bring that up, that maybe we need to do more or we need to do less. But if, every time you go out and they're wearing the personal protective equipment, they've isolated the area, all those type of things, then yes, so, and a lot of times it will depend on the scenario. What are the voltages to work with? What are the you know, what is the way, the configuration of the work that they're going to do? So I still think you need to have a conversation as to what's the plan for the work which the previous pre assessments is determining, and if they can kind of explain that the problem also that you're going to get into is the person that you're talking to with the contractor, a lot of times, isn't the person that's going to do the actual work. It could be an apprentice, or it could be a helper or whatever. So you know, and you see that a lot, lot of job sites, you're supposed to have a master electrician on site. I know you go to a lot of sites, and they are so, I mean, that's something that you need to kind of work out, but if you know that's a problem, then you've got something to work on, right to solve that problem. And so in looking at that, and some companies do make the decision that they are, you know, we expect them to come in with the expertise that they have. I just, I just been disappointed so many times by the shortcuts people take. And so when I look at that, I just need to feel comfortable that they're doing what they're saying they're doing, and if they are and I can validate it. And I've heard many times, you know, the last 32 times they had on their PPE and their harness and everything, and this time, for some reason, they didn't, well, what was that reason? And so we can kind of work on it from there. Hopefully they answer the question, but yeah, so you're going to get people that you think you have a lot of skills, especially with things that can find space, working with chemicals, working at heights and all that, and and there's nothing wrong with asking a question, do you feel it's safe? Is it? Is it? Is it within your capabilities of doing that? And it goes back to that definition of competent. It depends, it depends on the work. It depends on what they're doing, and the level of competency will change with the type of work.

Mallory Hendry  00:58:38
Absolutely, someone's asking about performance reviews. When do you recommend that that they're done? They are saying that, yes, you know, you do them at the beginning and then when the job is done. But what about if you're re bidding or or something like that? 

Peter Sturm  00:58:54
Yeah, I mean, so if they develop so it's that's a good thing. I think at the end of the year, this is what I'm working on with the client. Is they're going to review all the processes. They're going to look at all their their contractors, and they've got multi millions of dollars of of of contracts out there. I think it's just good and you know, again, you decide 10% 15% of all the contracts you can't do, 100% or you might want to focus on. The one thing I would look at also is Ministry of Labor always puts out their hot sheet as to what are hot issues, you know, working at heights or electrical hazards or whatever. I mean, there could be your shopping list too, you know. So you what you can say is, hey, Ministry of Labor, next March are going to be looking at working at heights. Well, so you know what? December before March comes along, I'm going to start to look at it right now and start to evaluate whether it's being effective or not. It's there's things that you can do that that really can, can put you in a position, especially from a due diligence perspective. And I've seen companies where they've been able to demonstrate that they have done the. Steps and hears that the documentation to support it, that the ministry has said, labor has said, we're not going to prosecute you. And that, to me, is an ideal world. Prosecutions Don't, don't change anything like, I mean, that person getting killed in Sudbury. What have we changed? You know, unless other unless now they're used, they're they're, you know, having the spotters, or they're closing the lanes, or whatever they're doing. 

Mallory Hendry  01:00:22
Absolutely, and we're at time. But do you want to do one more question? Peter, okay, so let me see here these, they're asking a little bit more about about the hazard assessments. What should a hazard assessment include or look like if it's conducted before the work is sent out for procurement and bidding.

Peter Sturm  01:00:45
Yeah, really good question. Please get out of the cubicle and go and take a look. Okay, I have had the most fun with health and safety of going out and being on the work sites. You learn every single time that you go out so that when you look at that and you're trying to determine and and that was my learning from the insurance company I worked with safe farm when I came out of university. And what it was was, as they said, go out to the site, because what's your perception of the hazards are and the reality are totally different. So get out of get out of the cubicles. Go down on the shop floor, if you're in healthcare, go down into areas that you haven't been in. I will tell you that I go into the bows of organizations when I do audits. And for me, it's just enthralling as to what you're going to see. But what happens then is that you get to really get a feel for what the hazards are like. You can feel it. You can taste it. It becomes something that becomes part of you. And so it really and now you've got also a point of reference that if something were to happen six months from now, you can say and you know what you got your cell phones. Take pictures, take videos, easy to do reports. I'm telling you, the technology now is such that you can have a record of what you've done way before and not worry about it at all. So it's it's interesting. Health and Safety has become really interesting. The Supreme Court decision is worth reading, just for understanding where we are with respect to health and safety in Canada. I will tell you, I believe that we do health and safety in Canada. We're one of the best leaders of health and safety art committees, our psychosocial stuff that we do just unbelievable. Okay, so yeah, hopefully I answered that.

Mallory Hendry  01:02:29
I think so. Peter, yes, your insights are always so wonderful. Thank you so much for sharing your expertise with us today and everyone in the audience for being here with us. Keep an eye out for more upcoming webinars and enjoy the rest of your day. Thank you so much. Bye.