Alberta court of appeal dismisses worker’s appeal In his 20+ year old case against a developer

The Alberta Court of Appeal has recently confirmed that an owner/developer of a condominium conversion project was not liable for damages in a civil action commenced by a worker.

The action arose from an incident in March 1994 when the worker was working on a rooftop of a condominium development worksite owned by the respondent. He slipped on an icy roof and fell through an unmarked piece of plywood that was covering a hole cut for a skylight. The worker sustained very serious injuries as a result and commenced an action against several parties including the developer.  The other defendants were found to fall within the protection of the Workers’ Compensation Act and so the action proceeded to trial solely against the developer. The trial decision was reviewed in our October 6, 2014 post.

On appeal, the Court confirmed the Trial Judge’s finding that the developer did not become liable in negligence by application of the requirements of the Occupational Health and Safety Act.  While the statute did inform the common law, it did not create civil liability.

The focus of the appeal was on whether the developer should be vicariously liable for the acts of the contractor it had retained to provide supervisory management services.  The contractor was protected from suit under the Workers’ Compensation Act.  The worker raised several different arguments to attempt to impose vicarious liability against the developer; however, the Court of Appeal rejected each of them.  One of the concerns expressed by the Court of Appeal in relation to the worker’s argument was that his reasoning would make the developer “liable almost to the level of an insurer” for all significant physical work being performed by a contractor or subcontractor on a construction site.  As such, this decision will be welcomed by developers in Alberta.

Heikkila v Apex Land Corporation, 2016 ABCA 126 (CanLII)