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
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
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.
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.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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