Employer, constructor and owner
You can become an "employer" not only by employing a worker directly but also by hiring a subcontractor or independent contractor. Employers are responsible for ensuring that:
- their workers and supervisors are competent and properly trained
- all necessary health and safety policies are in place, and workers and supervisors are trained on them and follow them
- all workers have and use appropriate, safe methods and equipment, and their work is done in accordance with the law
- "all precautions reasonable in the circumstances for the protection of workers" are taken
A "constructor" undertakes a construction project for an owner, like a general contractor, and may include an owner who undertakes all or part of the project themselves or through more than one employer. Remember the phrase "all or part": it sets the stage for inadvertent liability. Constructors are responsible for overall safety on the project and for making sure all workers, supervisors and employers meet their obligations.
A "project owner" generally includes the property owner and its agents and delegates, including property managers and management companies. Project owners have very limited responsibility: they need only prepare a list of designated substances present on site and provide it in project tenders and to the constructor.
That makes sense, because owners often know little about construction techniques, equipment and safety obligations, which is why they hire construction professionals. But a careless owner can end up wearing the constructor's or employer's hat, with all the obligations and potential liability that come with it. Worse, having taken on that role without realizing it, the owner has likely done too little to meet a constructor's onerous due diligence obligations, and may have no legal defence if there is an accident.
How owners become constructors
Every construction project in Ontario has a constructor. If a manufacturing company hires a general contractor to renovate its facilities, the general contractor is usually both the employer and the constructor, even if it subcontracts some of the work.
The more factors that suggest the owner controls the site or the workers, the more likely it will be found to have undertaken all or part of the project itself and become the constructor. Being actively involved in quality control doesn't make an owner the constructor. The risk arises when the owner goes beyond quality control and actively controls the work. Common examples:
- hiring more than one contractor directly to work on the site at the same time
- assigning the owner's own employees to work alongside the contractor's workers
- personally supervising parts of the work and directing workers
- personally responding to safety issues and incidents
Avoiding constructor liability
- Engage a general contractor or project manager.
- Take care with notices of project. The Act requires the constructor to file a "notice of project" for any project worth $50,000 or more. The Ministry of Labour and the courts may give significant weight to whoever is named on the form as the constructor. Require the constructor to file the notice of project (if needed) and to obtain all necessary permits, drawings, inspections and approvals.
- Don't pay subcontractors directly. The Ministry of Labour's "Constructor Guideline" doesn't have the force of law, but courts and the Ontario Labour Relations Board usually give it substantial weight. Its example is an owner who hires a general contractor, who subcontracts to others, and the owner pays the subcontractors directly. According to the guideline, that factor alone does not make the owner the constructor.
- Watch for a "designation of project". Owners often get into trouble by hiring a contractor for work not directly related to the main project. For example, while a general contractor resurfaces an apartment building's parking lot, the property manager hires a painter to repaint the hallways between the lot and the elevators. The owner may become the constructor for the entire project, even though it only contracted with the painter.
- Leave health and safety in the constructor's hands. Safety is one of the constructor's most important obligations. If the owner takes an active role in ensuring safety or responding to unsafe conditions, it risks becoming the constructor. Tell the constructor about safety concerns and let them deal with it. If the constructor doesn't fix the problem, the owner could consider shutting down the project and requiring a safety plan. Ideally, the written contract allows the owner to take these steps and makes the constructor bear the cost of any delays.
Policies and training
Project owners should have policies and procedures for construction work, and train everyone involved, from the people who hire contractors and general contractors to on-site staff, to avoid missteps that could leave the company with constructor liability.