Impacts of COVID-19 on Ontario’s Construction Sector

By Merovitz Potechin on Wednesday April 29, 2020.

As of April 16, 2020, the suspension of limitation periods and procedural steps will not apply to Ontario’s  Construction Act. That means that timelines under the Act are in place and now running. This includes timelines for the preservation and perfection of construction liens as well as the timelines around prompt payment and adjudication.

What is less clear is what business activities can continue during Ontario’s lockdown. This list of “essential” activities has been changing. The list was originally announced on March 23rd, amended on April 3rd, and amended again on April 9th. The list of construction activities that make the list currently sits at:

• healthcare projects;
• critical provincial infrastructure (including transit, energy, and justice);
• critical industrial construction;
• residential construction projects that have (a) a permit for footings, (b) a permit for above grade structural, (c) renovation work that started prior to April 4;
• maintenance and repairs required to maintain safety, security, sanitation, and essential operation of institutional, commercial, industrial, and residential buildings; and,
• a completion date before October 4 and that would provide additional capacity for food, beverages, or agricultural products to “essential” services.

The list of activities that can continue is anything but clear. What is critical? What infrastructure projects qualify? It is difficult to be certain. By its drafting, some have suggested that critical municipal infrastructure may not be included. However, given that municipalities are essentially provincial creations, there may be a good argument that the explicitness of “provincial” infrastructure was only meant to distinguish between federal and provincial activities.

Impacts on the ground

As of April 8, 2020, the province temporarily limited the application of noise bylaws, allowing “essential” construction activities to continue at the same pace (taking into account distancing and cleaning requirements) or faster.

If you have projects still moving under these new restrictions, the primary concern should be keeping workers safe. Workers are still required to maintain a 6 foot distance between them, even on the construction site. Projects must also provide access to regularly sanitized washrooms, and dedicated time in the day for sanitizing and cleaning practices. Also, workers should have access to dedicated tools and where that’s not possible and tools have to be shared, those tools must be sanitized.

Practical Realities

With the new realities in the legal framework and on the ground for construction activities, it is difficult for companies to determine what work can continue and how to get that work. Deadlines continue. On-site safety measures have been heightened. Liens are still an option and require proper registration and perfection. And prompt payment and adjudication regimes under the Act will continue to be available. It is not business as usual in the construction industry. But it is business none the less, and we must work within this new, temporary rubric as best we can in order to keep our industry thriving.

If you have any questions, please contact the Disputes and Litigation Team at Merovitz Potechin LLP.