Jan 14, 2021

Essential Construction Activities and Ontario’s Second State of Emergency

Once again, Ontario is in a state of emergency and has enacted stricter lockdown rules intended to address the ongoing impacts of the COVID-19 pandemic. The new rules, which are currently in effect, will impose stricter limits on the types of construction activities that may continue during the state of emergency.

Unlike the latest set of lockdown rules, only construction activities deemed “essential” may take place until the state of emergency is lifted. Although we don’t know how long this will last, the state of emergency is for an initial 28 days but may be extended. The specifics of what is and what is not essential construction can be found here at the moment, and we will update this link as necessary.

From a high-level perspective certain classes of construction activities will be permitted to continue, including works related to infrastructure, education, prescribed industrial activities, and projects started prior to January 12, 2021 which are intended to increase capacity for businesses that provide logistical or information technology support. As it relates to residential construction the updated regulation allows limited construction activities to continue, including residential renovations which started before January 12, 2021.

More particularly, the provincial government’s updated emergency regulation designates the following activities as essential construction.  All other construction activities are required to stop throughout the duration of the state of emergency, or until the regulation is amended to change what construction activities may continue:

Construction activities or projects and related services, including land surveying and demolition services, that,

  • are associated with the healthcare sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
  • ensure safe and reliable operations of, or provide new capacity in, provincial infrastructure, including transit, transportation, resource, energy and justice sectors beyond day-to-day maintenance.
  • support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage or in the supply of resources.
  • support the operations of, or provide new capacity in schools, colleges, universities, municipal infrastructure and child care centres within the meaning of the Child Care and Early Years Act, 2014.
  • are required for
      • the maintenance and operations of petrochemical plants and refineries;
      • significant industrial petrochemical projects where preliminary work commenced before January 12, 2021; or
      • industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, or enhancement of personal protective equipment, medical devices such as ventilators, and other identified products directly related to combatting the COVID-19 pandemic.
  • would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products.
  • were commenced before January 12, 2021 and that would,
      • provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
      • provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services.
  • that support the operations of broadband internet and cellular technologies and services.
  • are related to residential construction projects where:
      • a building permit has been granted for single family, semi-detached and townhomes
      • the project is a condominium, mixed use or other residential building, or
      • the project involves renovations to residential properties and construction work was started before January 12, 2021.
  • prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure. are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;
  • are funded in whole or in part by the Investing in Canada Infrastructure Program

As was the case with the first state of emergency in the Province from March 17, 2020 to July 24, 2020, no one knows how long these restrictions will remain in place. Those working on projects which are not considered essential should consider moving quickly to close down and secure their sites. The above list of essential construction projects is broad at present, but of course, subject to change depending on the provincial government’s ongoing response to the pandemic. The latest emergency information regarding the pandemic and an updated list of orders potentially impacting construction activities can be found here.

For those construction activities deemed essential during the state of emergency, it is now more important than ever that special efforts are taken to comply with all public health guidance. The Premier’s Office has announced the imposition of both new workplace safety requirements and additional enforcement mechanisms designed to identify individuals and workplaces violating the new rules.

For questions about whether your construction activities fall within the scope of essential construction, and for assistance determining what requirements essential construction activities will need to comply with to avoid running afoul of public health guidance, please contact Faren Bogach, Paul Conrod, or James De Melo.

 

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.