Apr 19, 2021

Is Your Construction Site “Essential”?

As part of the Ontario government’s latest declaration of emergency and provincewide Stay-at-Home order, enhanced public health and enforcement measures came into effect on Saturday April 17, 2021. For the construction industry, these measures mean that only “essential construction” activities may take place for the foreseeable future.

Essential construction has been given a few different meanings over the course of the past 13 months, but as of April 17, 2021, essential construction activities are limited to the activities set out in the following list. Future updates or changes to the definition of essential construction and related activities will be made available here. As of the writing of this article the restrictions on construction activities apply provincewide and are not subject to any geographic exceptions, as has been the case with previous orders.

Essential Construction:

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

(a) are associated with the health care sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;

(b) ensure safe and reliable operations of, or provide new capacity in,

(i) municipal infrastructure, or

(ii) provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors;

(c) 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;

(d) support the operations of, or provide new capacity in, schools, colleges, universities or child care centres within the meaning of the Child Care and Early Years Act, 2014;

(e) are required for,

(i) the maintenance and operations of petrochemical plants and refineries,

(ii) significant industrial petrochemical projects where preliminary work commenced before April 17, 2021, or

(iii) 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;

(f) would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

(g) were commenced before April 17, 2021 and that would,

(i) provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services,

(ii) provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services, or

(iii) provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials;

(h) support the operations of broadband internet and cellular technologies and services;

(i) are residential construction activities or projects and related services;

(j) prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;

(k) are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;

(l) are funded in whole or in part by,

(i) the Crown in right of Canada or in right of Ontario,

(ii) an agency of the Crown in right of Canada or in right of Ontario, or

(iii) a municipality; or

(m) are,

(i) intended to provide shelter or supports for vulnerable persons or affordable housing, and

(ii) being funded in whole or in part by, or are being undertaken by,

(A) the Crown in right of Canada or in right of Ontario,

(B) an agency of the Crown in right of Canada or in right of Ontario,

(C) a municipality,

(D) a service manager as defined the Housing Services Act, 2011,

(E) a registered charity within the meaning of the Income Tax Act (Canada), or

(F) a not-for-profit corporation.

The relevant regulation passed under the Reopening Ontario (A Flexible Response to COVID-19) Act, can be found here at the moment. As has been the case with previous orders, this list may be amended from time to time. The best source for up to date changes to the regulations and general information is the Ontario.ca homepage for COVID-19 resources, found here. This article will be updated as new amendments or regulations come into force.

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 BogachPaul 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.