Canada: The HR Space: Court Broadly Defines "Constructor" In Safety Case

Last Updated: July 21 2011
Article by Rosalind H. Cooper

The HR Space is edited by Lyne Duhaime, Karen M. Sargeant and Brian P. Smeenk.

Which party on a construction project is the "constructor"? While some provinces in Canada use this term, other provinces use slightly different terms, such as prime contractor. All are meant to refer to the party at the workplace that has overall responsibility for health and safety on the construction project. It is generally that party that is exposed to the greatest legal liability in terms of safety-related incidents.

"Constructor" Obligations

For example, under the Ontario Occupational Health and Safety Act ("OHSA"), constructors have significant obligations. They must ensure that all employers and workers on the project comply with OHSA and the Construction Regulations. The case law has confirmed that constructors will be held to a high standard in meeting those obligations. Therefore many companies go to great lengths to avoid assuming this role on a project.

An Ontario court has recently provided some further guidance on what indicators will be looked at in determining who is a constructor. In the case of R. v. Reid & DeLeye Contractors Ltd., a company was found to be a "constructor", rather than the construction manager it had contracted to be.

Background Facts of the Case

In June of 2005, Reid & DeLeye contracted with a hotel owner to construct a new hotel in Cambridge, Ontario. Reid & DeLeye intended to be the construction manager. It was responsible for carrying out specific roles during the pre-construction, construction and post-construction phases of the project.

The governing contract with the hotel owner specifically stated that the traditional roles and relationship of owner and general contractor would not exist. The owner would engage the trade contractors directly. The owner would assume the traditional role and responsibility of the prime contractor. Further, the construction manager would serve as the "Owner's advisor and agent, providing site management, administrative and technical services solely for the benefit of the Owner in the furtherance of the Owner's interest".

The contract specifically set out the responsibilities of Reid & DeLeye during the various phases of the project. During the pre-construction phase, most of the responsibilities involved preparing timelines and budgets, arranging for temporary services and site facilities, and obtaining permits and approvals. During the active construction phase, responsibilities included inspection of the work performed by various trades, establishing systems for changes in scope of work and payments to various trades, and review of the safety programs of each trade contractor.

Findings of the Lower Court

During the construction, a worker employed by a forming contractor was injured after falling from the second rung of a scaffold frame. Reid & DeLeye was charged with failing, as a constructor, to ensure that the scaffold or other work platform was the required width.

At trial, Reid & DeLeye argued that it was not the constructor of the project. It argued that the hotel owner had contracted with all of the trades on the project, including the forming contractor. The Court did not accept this position. It held that Reid & DeLeye was the constructor based upon several specific facts.

Specifically, Reid & DeLeye had conducted site safety inspections on the project using a site safety checklist. It enforced its safety violation disciplinary policy against the trades including the forming contractor. It appointed its own employees as project supervisor, co-ordinated payment of the forming contractor, and filed a Notice of Project declaring itself to the constructor. The Court reviewed the contract between the hotel and the forming contractor and found that Reid & DeLeye had assumed overall responsibility for establishing and co-ordinating safety precautions and programs on the project.

Appeal Decision

The appeal of the trial decision was dismissed. The appeal court emphasized that Reid & DeLeye was to oversee that safety programs were established and that safe work measures and procedures were implemented by various trades. Further, Reid & DeLeye was responsible for managing the use of scaffolds by the trades. It provided inspection and safety training with regard to scaffolds, the very issue that lead to the incident. The Court held that the more control a company exerts, the more likely it will be held to be the constructor.

This decision has significant implications for companies engaging in construction projects. The guidance provided by the court should be considered in determining the responsibilities to be assumed on a construction project.

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