Definition of “constructor”

The intent of the Occupational Health and Safety Act (OHSA or the 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 OHSA 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”. A person “undertakes” a project if they assume responsibility for it. The definition of “employer” in section 1 of the Act includes contractors and subcontractors. “Project” is also defined in section 1 of the Act.

Health and safety at a project are a shared responsibility. Though each employer at a project has significant responsibilities for the health and safety of their workers, 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.

Definition of “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”.

Examples where the owner is the 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.

The Act does not apply to work performed by the owner or occupant, or a servant of the owner or occupant, when carried out to, in or about a private residence or the lands used in connection with that residence.

An owner who hires 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 OHSA). Such an owner could hire 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.

When an owner hires only one 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 contractor, the owner could become the constructor if no general contractor has been retained and the separate contractors work simultaneously.

  • When an owner contracts with more than one contractor, the owner may enter into a contractual agreement with one of these contractors, or a third party, to undertake the project on behalf of the owner. Provided the owner has relinquished control over the project and the contractor or third party has assumed control, that contractor or third party is the constructor, even if the owner is paying the other contractors on the project.
  • Depending on the circumstances, if an owner contracts with more than one contractor but they only work on the project in succession and never simultaneously, each one may be the constructor when at the project, i.e. the owner does not become the constructor.
  • In addition, an owner may submit a Request for Designation of Separate Projects to the ministry. If the request is approved by a Ministry of Labour, Training and Skills Development (MLTSD) Director, each project that is designated as “separate” would have its own constructor.

In summary, on all projects, either the owner or someone hired by the owner is the constructor. Everyone involved with a construction project should be clear on who is undertaking the project, i.e. who the constructor is, and the responsibilities of all the parties associated with the project. It is important to put this information in writing so that the parties understand and abide by the agreement.

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, Training and Skills Development (MLTSD) is notified of a project, when and as required
  • ensure that the MLTSD is notified of an accident, fatality or occurrence, when and as required by the Act (sections 51, 52, 53 and 53.1)
  • 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 information about constructor duties, please refer to the Occupational Health and Safety Act and the Regulation for Construction Projects (O. Reg. 213/91). . Constructors who are also employers, and constructors who are also owners, have other duties under the Act and its regulations that must be fulfilled.

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.

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. However, MLTSD inspectors will assess who is the constructor based on the facts they find at a project where they are enforcing the OHSA and its regulations.

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 considered a single project, which would have an owner and constructor (who may or may not be the same as the owner). If you require assistance with respect to the interpretation of the legislation and its potential application in your specific circumstances, please contact a lawyer.

Pursuant to section 4 of O. Reg. 213/91, the owner of such a project may request a Director at MLTSD 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 MLTSD to designate them as separate projects.

This resource does not replace the Occupational Health and Safety Act (OHSA) and its regulations and should not be used as or considered legal advice. Health and safety inspectors apply and enforce these laws based on the facts they find in the workplace.