Land Developer Vindicated in Occupiers' Liability Case

A Calgary land developer was found not to be liable for the injury suffered on a construction site in the recent Alberta Court of Appeal decision in Heikkila v. Apex Land Corporation.

This decision involves an accident at a condo construction site dating back to 1994. At that time Heikkila was working on the roof of the development owned by Apex. Heikkila was only 19 when he slipped on the icy roof and fell through an unmarked piece of plywood covering a hole cut for a skylight, damaging his spinal cord and rendering him a paraplegic.

Heikkila filed a Statement of Claim in relation to his injuries on September 26, 1995 and named several defendants. The first issue to be determined was whether any of Heikkila’s claims were statute-barred by virtue of the Workers’ Compensation Act (WCA), which prevents a worker from suing companies who are “employers” within the workers’ compensation scheme. Ultimately the WCB Appeals Commission and the Alberta Court of Appeal determined that all parties other than the land developer, Apex Land Development Corporation, were protected by the WCA.

As a result, the only remaining defendant in the 1995 tort action was Apex. That action made its way to a liability trial and resulted in dismissal of the claim.

The Trial judge found that it was the negligence of the site supervisor that caused Heikkila’s injuries. However, she held that there was no agency or contractual relationship that would give rise to a finding of vicarious liability on the part of Apex for the actions of the site supervisor, or his project management company.

Furthermore, the trial judge held that Apex was not liable under the Occupiers' Liability Act, on the basis that it had reasonably selected and supervised the project management company hired to oversee the construction occurring on the site.

The trial judge also found that Apex was not directly liable to Heikkila as a developer as the provisions of the Alberta Building Code and the Occupational Health and Safety Act did not give rise to a duty of care on the part of Apex.

Heikkila appealed this decision, arguing that the trial judge ought to have found that the supervisory management services company (Summa) was acting for Apex to the degree necessary to make Apex vicariously liable for the conduct of the site supervisor.

Heikkila argued that the work he was performing, or alternatively construction work in general, was “inherently dangerous” and as a result Apex could not delegate liability for that work to anyone else. That is, Apex had directly ordered the skylights to be cut into the roof and therefore had to make sure this task was carried out in a manner that did not create an inherent danger.

The Court of Appeal found that while Summa was Apex’s agent for a number of limited purposes, this did not include the manner in which the construction was conducted. Apex reasonably left the that up to Summa, as it was experienced and knowledgeable in construction practices and Apex was not.

It was further noted that the relationship of an employer and independent contractor does not typically give rise to a claim for vicarious liability. The Court of Appeal noted that the position Heikkila was urging would expand the concept of vicarious liability beyond the scope currently stated in the case law, and found there was no compelling reason to create new law on the facts of this case.

With respect to vicarious liability based on the “inherently dangerous” argument, the Court of Appeal noted that this allegation was not set out in Heikkila’s pleadings and agreed with Apex that it was not proper for this argument to first be raised in the Court of Appeal .

However, the Court did go on to make comments in obiter with respect to the ‘inherently dangerous’ argument. The cases referenced by Heikkila were not seen to be helpful to this argument nor were the fact scenarios in those cases similar to the construction of skylights at issue in the case at bar. If Heikkila’s argument was accepted, it would mean that all activities, if carried our negligently, would qualify as inherently dangerous. It would then follow that anyone directing the activity would be vicariously liable. This would render the distinction for inherently dangerous activities meaningless, and would be contrary to the case law. In dismissing this argument, the Court of Appeal noted that accepting Heikkila’s argument would make developers/occupiers liable “almost to the level of an insurer of all significant physical work being performed by general or sub-contractors on a construction site.”

Alternatively, Heikkila argued that section 11 of the Occupiers' Liability Act had not been followed, and the trial judge had erred in finding otherwise. This portion of Heikkila’s appeal was also dismissed.

As a result of this decision, developers can breathe a sigh of relief that their scope of liability on a work site has not been expanded. Had the trial judge or the Alberta Court if Appeal decided otherwise even homeowners conducting a renovation of their own home and hiring independent contractors to perform the work would have been exposed for any incidents that occurred on the job site.

Don Dear Q.C. and Jennifer Biernaskie are partners in McLennan Ross’ Insurance and Risk Management Group and represented Apex.