Table of Contents | Print This Page

Case Studies: Constructor Guideline

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

The following case studies are intended to provide general guidance through the use of examples. They do not constitute determinations by the Ministry of Labour and have no legal effect. Identification of the constructor must be determined on a case-by-case basis having regard to all the circumstances.

3.1

The owner of a chain of department stores hires a contractor, ABC Builders, to erect a large box-type store. The owner is only paying this contractor to construct the shell of the store. The owner subsequently hires (and pays) two other contractors to do work on the store. One contractor is hired to do the electrical work and another to do the interior finishing. However the owner has entered into a contractual agreement with “ABC Builders” to take on the role of a constructor under the Act. ABC Builders is willing to take on this role and agrees to undertake the responsibility of overseeing all other employers on the project. Who is the constructor?

“Undertake” does not simply mean “pay”. The fact that ABC Builders is willing to take on the role of constructor and ABC Builders’ contracts with the owner to do so is evidence that ABC Builders is the constructor.

If, however, it became evident that the owner retained a significant degree of control over the project, or the contractors doing the electrical and interior work were not under the authority of ABC Builders, the owner could be deemed to be the constructor.

3.2

A hospital is having a new x-ray facility constructed. A contractor is hired to carry out the project. Before the project is completed, the hospital arranges to have a new x-ray machine installed by its supplier. Who, apart from the supplier, should be responsible for the safe installation of the x-ray equipment?

If the hospital introduced the x-ray machine supplier to the contractor, asked the contractor to coordinate the work with the supplier, and amended the contractual agreement with the contractor to reflect the situation, and the contractor did, in fact, exercise control over the installation, that would serve as strong evidence that the contractor was the constructor for the purpose of the installation.

However, if the hospital decided to allow the supplier to install the x-ray machine, and the hospital rather than the contractor exercised control, then the hospital would become the constructor for the whole project, and would have all of the responsibilities of a constructor. However, once the x-ray machine supplier finished the installation work, the original contractor could be considered the constructor again if the hospital can establish that it is no longer exercising control over the project and can demonstrate that the original contractor has resumed control over the project

As a formal matter, it is very important for the owner (in this case, the hospital) to clarify who the constructor is, in writing, and to have the designated constructor’s signature on such an agreement. As a substantive matter, who is actually exercising control is a critical consideration

3.3

An owner hires a third party (such as a project manager) to oversee the construction of a high-rise office tower. The third party schedules the work, ensures its quality, and advises the owner when payments are to be made to the contractors, who are working under contract to the owner. The third party hires or approves the hiring of the contractors on the project. That third party also looks after safety on the project and files a Notice of Project form with the Ministry of Labour stating that he or she is the constructor. Who is the constructor?

The project manager, hired by the owner, would likely be considered to be the constructor as he/she is exercising control over the project, and also explicitly agreed to this role by signing the Notice of Project form and filing it with the Ministry of Labour, identifying himself/herself as the constructor.

3.4

If the third party in Case Study 3.3 does not file a Notice of Project form with the Ministry of Labour (assuming the project does not warrant such filing as it does not fall within the parameters outlined in section 6 of O. Reg. 213/91), who is the constructor?

This would depend on a substantive assessment of the situation: e.g. Who is undertaking the project? Who is exercising control? Who is subject to what contractual obligations? etc.

3.5

Who is the constructor if, as in Case Study 3.3, the owner brings in and oversees contractors to do specific work (such as painting and plumbing) in the same areas of the project that is being worked on by contractors who are being overseen by the third party?

The owner would be the constructor, because the third party would only be undertaking part of the project. Despite having initially identified himself/herself as the constructor, the third party has no control over the additional contractors brought in by the owner. The owner in this case is directly undertaking parts of the project and he or she therefore has altered the conditions under which the third party accepted the constructor’s role and was made the constructor.

The third party would still be the constructor if he or she agreed to, and did oversee the additional contractors. Such an agreement between the third party and the owner should be in writing.

3.6

The owner of a mall is conducting some repairs in the parking lot/mall entrance while individual storeowners (or renters) in the mall are conducting construction activities within the boundaries of their own premises. Who is the constructor?

It is likely that there are several projects and several constructors. The parking lot/mall entrance repairs likely constitute one project. The constructor would be the mall owner, or someone hired by the mall owner to undertake the project on its behalf. In addition, each individual store is a project. Each storeowner, or someone hired by that owner to undertake the project on its behalf, would be the constructor for that particular project.

3.7

A factory is adding a new production line at the north-east corner of its facility. A general contractor, BUD, has been hired to undertake the construction of this new production line. At the same time, the factory decides to upgrade its storage facilities, located at the north-west corner of their premises. It hired a contractor, DUB to undertake this upgrade, consisting of structural maintenance and the addition of one storey to the existing storage space. Contractual agreements with both contractors, BUD and DUB stipulate that they must comply with the Health and Safety Policy of the factory while doing work on its premises. The factory has the two contractors each submit a Notice of Project to the Ministry of Labour, each identifying himself as the constructor for the project contracted with the factory. Both contractors will be doing the work at the same time and sharing the entrance to their respective projects. They will also share the washrooms and washout facilities. How many projects are there? How many constructors are there? Who are they?

The factory owner or operator having contracted two parties at the same time to carry out construction activities at the same address, would likely be considered the constructor, in spite of the fact that each of the contractors filed a Notice of Project stating that they are the Constructor on their project. The two contractors share the entrance, they share washroom facilities, and they are located at the same address, which is owned by the same owner and are carrying out construction activities at the same time. Unlike Case Study 3.3, where the third party was responsible for the entire construction of an office tower, it is the owner here who is undertaking the project by hiring two contractors, unless a Director designates two separate projects, under section 4 of O. Reg. 213/91, one undertaken by DUB and the other by BUD.

3.8

An owner leases land to a company, which then arranges for the construction of a retail outlet on the leased land. Under the terms of the lease, the owner is responsible for site improvements, such as parking lots and roads, and hires a contractor to do this work. Workers constructing the retail outlet must cross the road/parking lot project to access their project. Who is the constructor?

There are two separate owners: the owner of the land and the lessee (under the Act, “owner” is defined as including a lessee) and two separate projects, despite the fact that they are physically joined. Each project would have its own constructor.

Because the projects are physically joined, the constructor doing the work on the parking lot/road would have to provide safe access to everyone who needed to get to the retail outlet project, primarily the other constructor’s workers. Safe access would likely be through a barricaded portion of the outside project, which would have to be equipped with adequate hoarding or overhead protection to ensure the safety of everyone passing through.

The constructor of the retail outlet would have the responsibility to ensure that safe access and egress for their workers has been provided by the constructor doing the work on the parking lot/roads.

3.9

A homeowner hires Contractor A to do home renovation. Contractor A in turn hires subcontractors to help him/her out. Then the homeowner hires another contractor, Contractor B to do something outside of the scope of work for Contractor A. Both contractors work simultaneously on the house. Who is the constructor?

Given that the homeowner is undertaking the project (the home renovation) by more than one employer/contractor, the homeowner would be the constructor, and would have overall responsibility for health and safety on the project.

3.10

The homeowner in Case Study 3.9 asks Contractor A to assume the role of the constructor on the home renovation project, and to oversee the work being done by Contractor B. Contractor A agrees to this arrangement. Furthermore, the homeowner advises Contractor B that Contractor A is the constructor, and that accordingly Contractor B should follow instructions as given by Contractor A. However, the homeowner will still be paying Contractor B. These arrangements are documented in writing. Who is the constructor?

Provided these arrangements are reflected on the project, Contractor A would be the constructor.

3.11

A homeowner hires a contractor to do construction work: repairs and addition of a new section to the existing home. However, the homeowner decides to supply the construction materials to the contractor and also to direct the work. Who is the constructor?

Because the owner has assumed direction over the work, the owner becomes the constructor. If the owner were not to direct the work, the contractor hired to do the construction work would be the constructor, as he or she would have been undertaking the construction project for the owner. Once the owner decides to direct the work, he or she becomes the one undertaking the project. Having decided to hire a contractor does not change the fact that the owner is directly in control of construction (directing the work) and of the health and safety of the workers.

If the homeowner was only to supply the construction materials to the contractor and have the contractor do all the repairs and build the new section, the contractor may be considered the constructor.

Previous | Next