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Independent Contractor Negligence and Duty of Care

In a previous blog post on Occupier’s Liability, we reviewed the liability of a cafe for inadequate ladder and supervision in Woo v. Creme De La Crumb Bakeshop & Catering Ltd. 2019 BCSC 1752.  In that case, a 66 year-old injured claimant suffered a severe brain injury when he fell from a ladder while doing volunteer construction work at a café for his son.  Tragically, the injury left him in a permanent vegetative state.

At trial, the cafe was considered an occupier under the Occupier’s Liability Act.  As an occupier, it was found to have breached the duty of care owed to the injured claimant for providing a ladder that was unsuitable for the work he was doing.  In particular, the ladder was too short which caused him to lose his balance and fall suffering catastrophic injuries.  Furthermore, the café and the injured claimant’s son were found to have failed to provide any reasonable degree of supervision to the injured claimant when he was using the unsuitable ladder.

The issue of liability and whether there was a duty of care owed by the Cafe to the injured claimant hinged on whether the injured claimant’s son was considered an independent contractor hired by the cafe (owner occupier) who then, in turn, hired his father.  This is because an owner occupier does not owe an independent contractor a duty of care.  Instead, if injury is caused by the negligence of an independent contractor engaged by the owner occupier, then the owner occupier will not be liable as long as it exercised reasonable care in selecting and supervising the independent contractor and the work undertaken by the independent contractor was reasonable.

Therefore, central to the duty of care issue was the proper characterization of the relationship between the cafe and the injured claimant, as well as the injured claimant’s son and his company.  The trial judge concluded that the injured claimant’s son was carrying out the construction work at the cafe.  In doing so, he was acting in his capacity as an order and partner of the cafe, as well as its agent, rather than as an independent contractor.  One major factor in this finding related to the fact that the injured claimant’s son was not an “arm’s length” contractor given his interest in the cafe as a partner.  Another major factor identified by the trial judge was the absence of a written contract between the cafe and the injured claimant’s son or his company.  Where there is no written contract between an owner and a contractor, the owner is deemed to be the prime contractor.  Therefore, the trial judge concluded that:

[71]         Central to the duty of care issue is the proper characterization of the relationship between Crème on the one hand and the plaintiff on the other, as well as the role of Stefan and Incircle.

[72]         The plaintiff submits that Stefan was at all times acting as a principal and/or agent of Crème when overseeing the construction work at the Premises, including when overseeing and directing the plaintiff. As such, Crème owed the duties set out in s. 3 of the OLA. The plaintiff submits further that by virtue of Stefan’s relationship to and involvement in Crème, Incircle was not an independent contractor and, as such, Crème cannot avail itself of s. 5 of the OLA.

[73]         Crème submits that Incircle was an independent contractor and that it exercised reasonable care in selecting Incircle to do the work. Crème submits further that, as the occupier of the Premises, its duty did not extend to supervising the manner in which an experienced and qualified contractor like the plaintiff carried out his work.

[74]         I am satisfied on the evidence that it was Stefan who was carrying out the construction work on the Premises. In doing so, he was acting in his capacity as an owner and partner of Crème, as well as its agent, rather than as an independent, arm’s length contractor. A number of facts support this conclusion.

[75]         From the inception of their business relationship, it was agreed between Stefan, Mr. Lee and Ms. Lai that it was Stefan’s responsibility to source new opportunities and to arrange and supervise all necessary renovation and construction work. It was in that capacity that Stefan managed the construction work at the Premises. While some or all of the work was done through Incircle, the company was merely the vehicle by which Stefan carried out his responsibilities on behalf of Crème. In her evidence, Ms. Lai said that Stefan had oversight of the renovation work on behalf of Crème and that he was Crème’s key onsite liaison to ensure that the Premises were built out properly.

[76]         Stefan’s role in building the business with Mr. Lee and Ms. Lai was coupled with an explicit profit sharing structure. In the absence of any evidence that suggests otherwise, it is clear this venture was a partnership: Partnership Act, R.S.B.C. 1996, c. 348, ss. 2, 4(c)

[77]         There was no written contract between Crème and Incircle, nor between Crème and Sam’s Construction, for the work at the Premises or for any of the construction work done at any of the other Crème locations. In every instance, it was Stefan managing and supervising the work in his role as Crème’s Director of Business Development.

[78]         In this regard, I agree with the plaintiff that while Crème and Incircle are distinct legal entities, no documents were produced that would establish an arms length relationship between the two companies.

[79]         The absence of a written contract is also relevant in respect of the WCA. Pursuant to s. 118(1)(b), where there is no written contract between an owner and a contractor, the owner is deemed to be the prime contractor. In this case, both the absence of any written contract and the direct relationship between Stefan and Crème lead to the inescapable conclusion that Crème, through Stefan, was supervising the renovation work at the Premises.

[80]         In the circumstances, I find that Crème was the occupier of the Premises for the purposes of the OLA and, as such, owed a duty of care to the plaintiff as described in ss. 3(1) and (2) of the OLA. As a result, the two stage common law duty of care analysis is unnecessary.

[81]         I find further that neither Incircle, nor the plaintiff, were independent contractors within the meaning of s. 5 of the OLA thus Crème cannot avail itself of that section. Even if Incircle could be characterized as an independent contractor, there is no evidence that Crème took reasonable, or any, care in the selection or supervision of Incircle.

Tags: duty of care, independent contractor, occupier liability

"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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