Excavators, Locates and Utility

WHAT HAPPENS WHEN A CONTRACTOR IS GIVEN BAD INSTRUCTIONS

Contractors are much like computers, they to a large extent are only as good as the information they are given. While the liability of a contractor for damage resulting from the performance of their contractual obligations is to a large extent settled law, there remains the issue of whether their conduct was based on their own carelessness and negligence or based upon the information and instructions provided to them in relation to this performance.

If a contractor’s conduct results in damages to any lands, premises or property generally the question then arises as to whether they were acting upon the instructions or others, whether these instructions were false, misleading or inaccurate and whether they had an opportunity or the ability to determine same after they commenced or agreed to commence performance of the contracted duties. The Court’s have reviewed this issue and as outlined in the case of Creasy, et al. v. Sudbury (Municipality), 1999 CanLII 3820 (ON CA) held that subject to the facts that;

“31 In my view the trial judge erred in the manner in which he applied the St. John principle to the issues in this case and in his finding that Sudbury had a common law duty to indemnify Inco.”

“32 In ordinary circumstances, a person who retains an independent contractor is not responsible to others for the negligence of the contractor: St. John at p.383. However, the rule in that case is that where a person retains an independent contractor to carry out a responsibility which, if performed negligently, could have serious consequences to others because of its dangerous nature, then in that circumstance, the person who retains the contractor is vicariously liable for the negligence of the contractor”.

“33 The trial judge found that the provision of the sewage treatment plant service is a potentially dangerous activity because of the nature of raw sewage and the potential consequences of a spill. Based on that finding, it was open to the trial judge to grant judgment to the plaintiffs against Sudbury for vicarious liability for the negligence of Inco. For reasons not explained, he did not do so”.

“34 However, the St John case does not address the issue of the obligations of the contractor and the employer to each other, and therefore is not a basis for holding that Sudbury has any obligation at common law to indemnify Inco in respect of its obligations to the plaintiffs for its negligence in the operation of the lift station”.

3) SHOULD JUDGMENT HAVE BEEN GRANTED TO THE PLAINTIFFS AGAINST SUDBURY

“35 The trial judge found Inco to be negligent and made specific findings that it used personnel unfamiliar with the system, failed to provide a non-electrical alarm system and failed to adequately test the back-up diesel. He made no specific findings of fault or negligence against Sudbury, but in the course of finding that Sudbury was liable to indemnify Inco, he said: By engaging Inco as an independent contractor, the Region cannot escape responsibility for movement of such bacteria laden waste. It had no reason to expect that Inco would manage the system differently than it had in the past but even in that regard, it appears some $800,000.00 was contributed to upgrade the system prior to the Region accepting. The evidence is less than clear whether these funds included upgrading of both the collection system and the “sewage treatment plant”, but either way, it serves as an indication that the services had been somewhat less than acceptable before upgrade. A system of joint inspection was not provided for, nor specifications re non- electrical back up warning systems, nor for the training of personnel, even though one-half the costs were being contributed. The failures of which we have heard of are not such acts of negligence as could not have have been anticipated and guarded against. I find therefore that the Region has a responsibility to indemnify".

“36 Inco’s position is that Sudbury should have been found at fault or negligent as well. The plaintiffs alleged negligence, nuisance and breach of statutory responsibility4 in their claim against Sudbury. The St. John case also raises the issue of vicarious liability referred to above, and the related potential cause of action for breach of non-delegable duty”.

“37 In Lewis v. British Columbia, 1997 CanLII 304 (SCC), “1997 3 S.C.R. 1145, the court held that the responsibility of a government agency to use reasonable care in carrying out its statutory authority in respect of public works will extend to responsibility for the negligence of an independent contractor retained to do the work. Cory J. speaking for the majority characterized this responsibility as “a non-delegable duty to use reasonable care in the performing of the required work.” (p. 1162). As to the type and extent of the liability this duty encompasses, the reasons of the majority suggest that depending on the statute and all of the circumstances, there may be a combination of vicarious liability in the form of responsibility by the government agency for the negligence of its contractor, together with direct responsibility on the government agency to engage a competent contractor and if required to supervise that contractor. In concurring reasons, McLachlin J. described the non-delegable duty in this way: In essence, a non-delegable duty is a duty not only to take care, but to ensure that care is taken. It is not strict liability, since it requires someone (the independent contractor) to have been negligent. But if it applies, it is no answer for the employer to say, “I was not negligent in hiring or supervising the independent contractor.” The employer is liable for the contractor’s negligence. The employer already has a personal duty at common law or by statute to take reasonable care. The non-delegable duty doctrine adds another obligation – the duty to ensure that the independent contractor also takes reasonable care. (p.1171/2) ”.

The above cited decision essentially states that as a contractor unless the services requested are so obviously hazardous as to demonstrate the nature of the services to be performed cannot be held liable if provided insufficient or misleading instructions and that in such cases the party contracting them be it municipal, provincial or private is vicariously liable for and/or must indemnity the contractor.

Negligence in Canada and specifically Ontario is well outlined in the case of Dawes v. Gill, 2019 ONSC 5649 (CanLII) which states;

(i) Negligence is a failure by a party who owes a duty of care to another to take such care as would be reasonable in the circumstances.”23 The following four factors must be proven by the plaintiff on a balance of probabilities for a successful claim in negligence: (i) the existence of a duty of care owed to the plaintiff by the defendant; (ii) the conduct of the defendant that fell below the applicable standard of care; (iii) that the plaintiff suffered actual damage; and (iv) the damage was caused by the defendant’s breach of the standard of care (as mentioned above causation follows below);”24

(ii) The “neighbour principle” is well established.”25 The Gills are the Dawes’ neighbours and both are subject to the same duty of care owed by all neighbours to one another; and

(iii) The standard of care is governed by reasonableness. That is, the standard is one that is expected of an ordinary, reasonable, and prudent person in the circumstances, and in this case that which would be expected of a reasonable homeowner. The standard is objective. What is “reasonable” will depend on the facts of each case, including the likelihood of known or foreseeable harm, the gravity of the harm, and the burden or cost that would have been incurred to prevent the injury.”

“68 With the torts of nuisance and negligence, the Dawes must prove that the tortious act of the wrongdoer must have caused the injury in order to justify compensation to the “victim” out of the pocket of the wrongdoer.”30 The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.”

“69 The Supreme Court of Canada offered the following guidance on applying the “but for” test in Clements (Litigation Guardian of) v. Clements: The “but for” test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury”.

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.

“70 Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury. In other words, that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry.”

Based on the above outlined of negligence as determined by the Court when contrasted with the duty of a contractor when provided bad or inaccurate instructions it is suggested that no matter what the conduct of the contractor if he had no indication of the hazards implied by his conduct such conduct would not have been negligent but for the instructions he was given by his principle.

Thus as a contractor if allegations are being made against you in respect to your potential liabilty of alleged negligence when you were simply doing what you were instructed to do where you were instructed to do it and if you need assistance navigating the complicated issues arising from such allegations please contact us either by phone at: 800-362-4713 or email at: info@mississaugaparalegal.ca.

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