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Frequently Asked Questions: Constructor Guideline

  • ISBN: 978-1-4249-6190-0
  • Revised: March 2009
  • Content last reviewed: June 2009

Who is a constructor?

The intent of the Occupational Health and Safety Act is to have one person with overall authority for health and safety matters on a project. This person is the constructor of the project.

Section 1 of the Act defines “constructor” as “a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer”. The dictionary definition for “undertake” is “make oneself responsible for”, which means a constructor is a person who is responsible for a project. The definition of “employer” in section 1 of the Act includes contractors and subcontractors. “Project” is also defined in section 1 of the Act.

The constructor is the party with the greatest degree of control over health and safety at the entire project and is ultimately responsible for the health and safety of all workers. The constructor must ensure that all the employers and workers on the project comply with the Act and its regulations.

Who is an owner?

Section 1 of the Act defines “owner” as including “a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate”.

Does every construction project have an owner and a constructor?

Every project that is governed by the Act has both an owner and a constructor. The constructor will either be the owner of the project or a third party contracted by the owner to undertake the project for the owner.

However, an owner who engages an architect, professional engineer or other person solely to oversee the quality control of the work at a project does not necessarily become a constructor (subsection 1(3) of the Act). Such an owner could engage a third party as a constructor as well as the person engaged only to oversee the quality control of the project.

The following examples illustrate some common situations for all owners of projects, including homeowners. Work in or about a private residence, performed solely by the homeowner or occupant (or a servant of either), is not subject to the Act. However, where the homeowner hires anyone to do the work, the Act applies in respect of that work. Who the constructor would be would depend on the circumstances.

  • When an owner hires only one employer (contractor) to do all the work on a project, then that contractor is undertaking the work and is the constructor. This contractor is often referred to as the general contractor.
    • In the situation above, the general contractor may, in turn, subcontract some or all of the work to another party. He or she remains the constructor for the project, as long as he or she is the only party with whom the owner contracts to undertake the project.
    • In the situation above, if the owner is an employer who assigns his or her workers to work on the same project as the general contractor, he or she may become the constructor if the general contractor was not informed of and did not agree to the presence of the owner’s workers and does not exercise control over them. However, if the general contractor agrees to use the owner’s workers and to direct their work, he or she will remain the constructor.
  • When an owner undertakes a project by contracting with more than one employer (contractor), the owner is undertaking the project and is the constructor.
  • When an owner contracts with more than one employer (contractor), the owner may enter into a contractual agreement with one of these employers or a third party to undertake the project on behalf of the owner. Provided the owner has relinquished control over the project and the employer or third party has assumed control, that employer or third party is the constructor, even if the owner is paying the other contractors on the project. The owner may also engage the services of a professional engineer, an architect, or another person solely to oversee the quality control of the project without becoming the constructor.
  • Generally, when an owner of a project is an employer and uses his or her own workers to carry out that project, the owner is undertaking the project and is the constructor.

In summary, on all projects, either the owner or someone hired by the owner is the constructor. However, if the work is being performed by a homeowner or occupant (or a servant of either) in or about a private residence the Act does not apply in respect of that work.

Everyone involved with a construction project should be clear on who is undertaking the project, who the constructor is, and the responsibilities of all of the parties associated with the project. It is important to put this information in writing.

What are the key duties of a constructor?

Constructors have the following key responsibilities, on the projects that they undertake:

  • ensure that the measures and procedures prescribed by the Act and its regulations are carried out on the project,
  • ensure that every employer and every worker performing work on the project complies with the Act and its regulations,
  • ensure that the health and safety of workers on the project is protected,
  • ensure that a health and safety representative or a joint health and safety committee is selected or established, when and as required,
  • ensure that the Ministry of Labour is notified of a project, when and as required,
  • ensure that the Ministry of Labour is notified of an accident or occurrence, when and as required,
  • ensure that every contractor or subcontractor receives a list of all designated substances present at the project before the prospective contractor or subcontractor enters into a binding contract for the supply of work on the project,
  • ensure that written emergency procedures are established for the project and posted, and
  • appoint a supervisor for every project at which five or more workers will work at the same time.

For a more detailed list of constructor duties, see the appendices. Constructors who are also employers, and constructors who are also project owners, have other duties under the Act and its regulations that must be fulfilled.

What is the relationship of the constructor to the other parties on a project?

The constructor has overall responsibility on a project for compliance with the Act, the Regulation for Construction Projects (O. Reg. 213/91) and other applicable regulations. The constructor may also have duties as an employer or as an owner.

What is the extent of a project?

Individual projects are typically identified by their location, the owner of the project, and the time frame for construction activities to be undertaken by the identified constructor at that particular location.

The owner of an industrial establishment, a factory, a hospital, a production plant or municipal premises may decide to undertake the project by himself/herself (and thus become the constructor); alternatively, that owner may contract the construction activities on their premises to one general contractor, who would be in charge of undertaking the construction activities for the owner (and thus would be the constructor of the project).

Typically, construction activities taking place at the premises of one address owned by a person (individual, group of individuals, partnership, or corporation) during a determined period of time with an identified goal – of erecting a new building or conducting repairs, structural maintenance, addition or demolition of an existing structure – are deemed to be part of a single project, which would have an owner and constructor (who may or may not be the same as the owner).

Pursuant to section 4 of O. Reg. 213/91, the owner of such a project may request a Director at the Ministry of Labour to designate part of a project as a project for the purposes of the Act and the regulation. Each designated project would have its own separate constructor. The Director, in considering such a request, would look at the possibility for separating the construction activities being undertaken, either in space or in time.

Space considerations would include independent access and egress, toilets and wash-up facilities. Clear boundaries should exist among the various projects requested to be identified as separate. The extent to which each potential constructor for each project would have control over the construction activities carried out on that project and over the health and safety of the workers on that project, independently from the other projects, would be instrumental in the Director’s decision. Each one of the separate projects would have its own Joint Health and Safety Committee or Health and Safety Representative, when and as required, independently from the other project or projects.

Construction activities taking place at the same address, with one owner, may be considered separate projects when the activities are clearly separated in time. For instance, demolishing an old structure and erecting a new one could be undertaken as two separate projects: Project A (consisting of demolishing the old building and removing the resulting debris) would be undertaken by constructor C1, and Project B (consisting of erecting a new structure) would be undertaken by constructor C2. In this instance, Project B starts only after the completion of Project A. If there were to be any overlap in time between the two projects, the owner would have to apply to a Director of the Ministry of Labour to designate them as separate projects.

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