Resources: Client Update: Who Is A Constructor?

The Nova Scotia Occupational Health and Safety Act (the "Act") provides that "contractors" and "constructors" have similar, but not identical, responsibilities, with a "Constructor" having greater authority and more responsibility for the health and safety of those working "at or near a project". Determining who is or who isn't a "constructor" has not always been clear. However, two relatively recent decisions from the Nova Scotia Provincial Court have gone a long way in clarifying matters.

Both decisions stemmed from a September 2013 accident during the construction of a new building at Dalhousie University when an unsecured outrigger beam fell several floors and caused catastrophic injuries to a worker.

The first decision from 2016 involved the acquittal of McCarthy's Roofing of four charges as a result of the accident: R. v. McCarthy's Roofing Limited, 2016 NSPC 52. Stewart McKelvey provided this analysis with respect to Judge Derrick's decision.

More recently, Aecon Construction Group was found guilty of breaching the Act and sentenced to a $35,000 fine (plus 15% victim surcharge) and a payment of $15,000 to the Nova Scotia Construction Safety Association so that they could prepare presentations regarding the proper safe assembly, disassembly, securing and storing of swing stages. Judge Lenehan's 68-page decision found that Aecon was a constructor and it had breached the "general duty" provision of the Act, which required it to take every precaution reasonable to ensure the health and safety of a person at a workplace.

Judge Lenehan's decision is significant for employers for two reasons:

As noted above, the differences in responsibilities under the Act between a contractor and a constructor are a little unclear. Following McCarthy's Roofing, the Aecon decision provides further guidance on how the Court will assess whether an entity is a constructor, which is defined in the Act as "a person who contracts for work on a project or who undertakes work on a project himself or herself." Judge Lenehan explained: The Court must look at the role of the alleged constructor on the project, both individually and in contrast to other persons on the project and examine their level of authority and responsibility for a project or...