Residential Construction Liability (Canada)
With many homeowners conducting renovations or other related projects, we need to be careful how we organize the work to ensure liability and safety on construction projects. This can prevent legal issues for homeowners and ensure a smooth and successful project
Disclaimer: I am not, nor do I claim to be an expert in OH&S law, litigations, or
Definitions
In Canada, Occupational Health and Safety Legislation designates the constructor of a project (residential or commercial) to have overall authority for health and safety matters.
By definition, the “constructor” is “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”.
In simpler terms, contractors hired to complete a project, and are responsible for all subcontractors/trades, are the constructor, also referred to as the prime contractor.
However, owners who hire multiple contractors for the same job becomes the constructor, as they will have the greatest degree of control over health and safety at the entire project and all its workers.
Does every project have an owner and constructor?
In short, yes, every project governed by OHSA has both an owner and a constructor (which can be the same person depending on contractor management).
If the work requires an architect or engineer to oversee quality control, such as the case of structural modifications or new builds, the owner can designate the prime contractor as the constructor and still manage the engineer without becoming the constructor.
The OHSA does not apply to residential owners who perform all the work in or about a private residence themselves, occupants do the work, or a servant of either.
Examples of Constructor Designation
When a contractor hires one contractor to do all of the work, including hiring and managing all subcontractors, than contractor becomes the constructor.
When a homeowner hires multiple contractors to do the work, they become the constructor, as they will have the most control over the work and workers.
When a homeowner hires multiple contractors to do the work, but sign a written agreement with one of the contractors to undertake the project on their behalf, and relinquishes their control, that contractor becomes the constructor or prime contractor.
For any project, it is critical to ensure that all involved are clear on who is undertaking the project, who the constructor is, and the responsibilities of all involved. This should be included in a written document or contract.
Key Duties of a Constructor
Constructors engaged on a project are responsible for the following:
Ensure measures and procedures prescribed by legislation and its regulations are carried out on the project,
Ensure every employer and worker complies with the legislation and regulations,
Ensure that the health and safety of workers on the project is protected,
Ensure a health and safety representative or joint health and safety committee is selected/established, when and as required,
Ensure jurisdictional labour organizations are notified of a project, when and as required,
Ensure jurisdictional labour organizations are notified of an accident or occurrence, when and as required,
Ensure every contractor or subcontractor receives a list of designated substances present at the project before entering a binding contract,
Ensure written emergency procedures are established and posted for the project, and
Appoint a supervisor for every project at which five or more workers will work at the same time.
For more details, please refer to your jurisdictional labour organization.
10 Important Tips for Homeowners
Ensure a signed written contract between the owner and the constructor/prime contractor outlining the above information and may include some of the following elements:
Set cost structures
Detailed schedule and job milestones
Warranty
Retention statement (partial releases of payment when certain work elements are completed)
Written change order procedures and approval process (nature of change, impact to cost, and effect on schedule)
Statement of arbitration to prevent litigation
The Canadian Home Builders’ Association provides a great resource to learn and understand what a residential contract should include. See link below.
Be familiar with the constructors responsibilities as well as yours as the homeowner and limitations as an owner to ensure you do not become liable for a project
Ensure work spaces are clearly defined, especially when two separate jobs/contractors are occurring in close proximity. This includes independent egress and washroom facilities.
Speak with your insurance company to understand the limits of your homeowner insurance, which may not cover major construction.
References: