Is a floor coating considered construction under Ontario law?

Floor coating work is likely construction under Ontario law. The Occupational Health and Safety Act defines "construction" to include alteration, repair and painting, so a floor coating project in an occupied commercial space is likely to fall within that definition; for an unusual case, ask the Ministry of Labour.

That classification has practical consequences for anyone hiring a floor coating contractor.

Under OHSA, a tenant can be treated as an "owner" for the purposes of a construction project. Before any contractor begins work, OHSA s.30(1) requires the owner to determine whether designated substances are present at the project site and to prepare a list. Under s.30(3), the owner must make sure a prospective contractor has that list before a binding contract is entered into. O. Reg. 490/09 lists asbestos, isocyanates and crystalline silica among the designated substances. If your floor has old vinyl tile or black mastic, have it tested before any grinding takes place. Under s.30(5), an owner who fails to comply is liable to the constructor and every contractor and subcontractor for losses arising from a designated substance the owner ought reasonably to have known of.

The OHSA classification also means a WSIB clearance certificate is required. WSIB policy 14-02-19 says a principal who directly retains a contractor for construction work must obtain a clearance before work begins, and the clearance must remain in effect throughout the job. The householder exemption does not apply to a business. Without a clearance, the principal may be liable for the contractor's WSIB payment obligations up to the value of the labour portion of the contract. Keep clearance records for at least three years.

If the total cost of labour and materials is expected to exceed $50,000, O. Reg. 213/91 s.6(1) requires a Ministry notice of project. The constructor files it.

The Construction Act also applies. Each payer must retain a holdback of 10 per cent of the price of services or materials as supplied (s.22(1)). A contractor's lien expires 60 days after the earlier of publication of substantial performance or the contract being completed, abandoned or terminated, unless preserved (s.31(2)). Whether a commercial tenant is an "owner" under the Construction Act depends on the facts and the lease; get legal advice on that question.

One question worth putting to a contractor before you sign: ask them to confirm in writing which designated substances they have been told are present at your site, and how they plan to handle the work if any are found during prep.