Construction Through COVID-19 In Canada: A Guideline For What Each Province And Territory Is Doing [Current As At May 4, 2020] – Real Estate and…

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COVID-19 continues to have a profound impact on constructionactivity in Canada. Governments have limited what constructionactivities can continue during the shutdown, issued emergencyorders affecting construction litigation, and changed health andsafety protocols at site.

The impacts to construction projects, litigation, and health andsafety vary across provinces and territories. Below is a guidelineresource for how each province and territory is managingCOVID-19's impact on the construction industry. For eachprovince and territory we have assembled and laid out,

1. the list of permitted construction and related servicesthat can continue;

2. the impact of emergency orders on limitation periodsand procedural deadlines for construction litigation; and

3. the recommended guidelines for increased health andsafety practices for construction sites.

Should you have any questions about whether your constructionproject can continue during the pandemic, or how these orders mayaffect your existing or future litigation, please feel free tocontact us. We will keep this bulletin updated on a weeklybasis.

To locate a particular province or territory in the list, pleaseclick it in the list below:

A)Ontario

B) Quebec

C) BritishColumbia

D)Alberta

E)Saskatchewan

F)Manitoba

G) NewBrunswick

H) NovaScotia

I) Prince EdwardIsland

J)Newfoundland

K) Yukon

L) NorthwestTerritories

M)Nunavut

The list of construction and related activities that maycontinue in Ontario during the pandemic are listed below.Ontario's complete list of essential services can be found here.

Construction Services

1. Construction projects and services associated with thehealthcare sector, including new facilities, expansions,renovations and conversion of spaces that could be repurposed forhealth care space.

2. Construction projects and services required to ensuresafe and reliable operations of, or to provide new capacity in,critical provincial infrastructure, including transit,transportation, energy and justice sectors beyond the day-to-daymaintenance.

3. Construction projects and services that support theoperations of, and provide new capacity in, schools, colleges,universities, municipal infrastructure and child care centreswithin the meaning of the Child Care and Early Years Act,2014.

4. Critical industrial construction activities required for,

5. Construction projects that are due to be completedbefore October 4, 2020 and that would provide additional capacityin the production, processing, manufacturing or distribution offood, beverages or agricultural products.

6. Construction projects that were started before April 4,2020, and that would:

7. Residential construction projects where,

8. Construction to prepare a site for an institutional,commercial, industrial or residential development, including anynecessary excavation, grading, roads or utilitiesinfrastructure.

9. Construction and maintenance activities necessary totemporarily close construction sites that have paused or are notactive and to ensure ongoing public safety.

Construction Related Services

10. Lawn care services and landscaping services.

11. Maintenance, repair and property management servicesstrictly necessary to manage and maintain the safety, security,sanitation and essential operation of institutional, commercial,industrial and residential properties and buildings.

12. Businesses that supply other essential businesses oressential services within Ontario, or that supply businesses orservices that have been declared essential in a jurisdictionoutside of Ontario, with the support, products, supplies, systems,or services, including processing, packaging, warehousing,distribution, delivery, and maintenance necessary to operate.

13. Stores that sell hardware products.

14. Garden centres and plant nurseries.

15. Business that provide land registration services.

16. Businessesthat deliver or support the deliveryof services including:

On March 16, 2020, the Ontario Government issued an emergencyorder suspending all limitation periods and procedural deadlines inlitigation. However, effective April 16, the Ontario Governmentexempted the limitation periods and procedural deadlines in theConstruction Act from the emergency order. For more details onthese changes and the impact on liens, holdbacks and constructionlitigation generally, please see our prior bulletin on this topichere: Show Me the Money Government of Ontario to AmendEmergency Order to Allow Release of Holdbacks. The completeregulation exempting the Construction Act that took effectApril 16 can be found here.

See here for the Chief Prevention Officer's guidance to theconstruction sector in Ontario on health and safety related toCOVID-19.

1. List of Permitted Construction and Related Services

Starting May 11, 2020, all construction industry worksites fromall sectors of the construction industry including residential,civil engineering and roads, institutional, commercial andindustrial can resume their activities (however, admin staff mustcontinue teleworking).

A summary of the more limited construction and relatedactivities that may continue in Quebec until May 11, 2020 arelisted below.

Construction Activities

1. Construction firms, for emergency repairs or to ensuresafety

2. Electricians, plumbers and other trades (emergencyservices only)

3. Equipment rental firms

4. Landscaping and landscape maintenance (includingnurseries, garden centres and businesses selling swimmingpools)

5. Construction and renovation of residential dwellings,for any immovable where the taking of possession of a residentialunit must take place on or before 31 July 2020, including thesupply of goods and services that may be required for the work,including the services of real estate agents, land surveyors,building inspectors and assessors, and chartered appraisers

Construction Related Activities

6. Maintenance of essential public infrastructures inproper working order (bridges, municipal buildings, etc.).

7. Construction, maintenance and upkeep of essentialactivities in connection, in particular, with public and privateinfrastructures that may create a risk for public health and safety(private dams, management of hazardous and radioactive waste,etc).

8. Cleaning, upkeep and pest management.

9. Building maintenance (elevators, ventilation, alarmsystems, etc).

10. Household appliance maintenance and repair.

Quebec's complete list of essential workplaces can be foundhere.

By Order number 2020-4251, the Chief Justice of Qubecand the Minister of Justice suspended prescription periods(limitation periods), forfeiture periods and procedural deadlinesuntil the public health emergency is lifted or otherwise amended byfurther order.

Construction hypothec periods are forfeiture periods and aretherefore suspended under the Order. However, contractors are beingadvised to act as if the deadlines still apply and to registertheir notice of hypothec, and notice of intention to exercise ahypothecary right within the requisite time periods (the landregistrar is still open to receive notices).

Additional guidance on how to calculate delays is expected fromthe Government once the suspension is lifted.

The COVID-19 Guides for Construction sites (French Only)published by the Safety of Labour Board (CNESST) on health andsafety can be found here and here.

A summary of construction and related activities that maycontinue in British Columbia during the pandemic are listed below.British Columbia's complete list of essential workplaces can befound here.

Construction and Related Activities

1. Construction work, construction firms, skilled trades,and professionals, and; construction and light industrial machineryand equipment rental.

2. Plumbers, electricians, elevator maintenance providers,property management services, building systems maintenance andrepair technicians, engineers, fire safety and sprinkler systems,and other service providers who provide services that are necessaryto maintaining the safety, sanitation, and daily essentialoperation of residences and commercial buildings.

3. Land registration services.

4. Workers who provide or support inspections to ensureworksites are safe for workers; and who investigate, process andmanage claims for workplace accidents, including services relatedto the care, treatment and provision of workers' compensationbenefits to those impacted.

NOTE: Unlike some other provinces, which have mandated theclosure of any type of business not deemed "essential" or"allowable", British Columbia does not mandate suchclosures across-the-board. A business or service that is not an"essential service" may remain open in British Columbiaprovides that such business or service can comply with therecommendations of the PHO. However, such businesses may be orderedto close by a specific order of the PHO.

Ministerial Order 86/2020 suspended limitationperiods and procedural time periods from March 26, 2020 until thestate of emergency is over (which as of April 21, 2020 is scheduledfor May 29, 2020, see here).

On April 15, 2020, Ministerial Order 98/2020 amended MO 86/2020,lifting the suspension of limitation and procedural time periodsunder the Builders Lien Act (as well as those under Division 5 ofPart 5 of the Strata Property Act) effective April 15, 2020. Oncelifted, it appears that parties will have the same amount of timeto meet a deadline that had been remaining before the suspensionbegan on March 26, 2020.

Please see here for the health and safety measures the BritishColumbian Government has indicated all construction sites shouldfollow: Guidance for Construction Sites Operating duringCOVID-19 Pandemic.

A summary of construction and related activities that maycontinue in Alberta during the pandemic are listed below.Alberta's list of essential workplaces can be found here.

Construction Activities

1. Construction projects and services associated with thehealthcare sector, including new facilities, expansions,renovations and conversion of spaces that could be repurposed forhealth care space.

2. Construction projects and services required to ensuresafe and reliable operations of critical provincial and municipalinfrastructure, including transit, transportation, energy andjustice sectors beyond day-to-day maintenance.

3. Construction work and services, including demolitionservices, in the industrial, commercial, institutional andresidential sectors.

4. Construction work and services that supports health andsafety environmental rehabilitation projects.

5. Construction projects to repair or render operable /safe any public conveyance, including elevators, escalators and skilifts.

6. Construction projects and services that are required toensure safe and reliable operations of critical energyinfrastructure or support supply chains.

7. Any other construction project that can safelyabide by the CMOH Public Health guidelines/directives.

Construction Related Activities

8. Land registration services.

9. Businesses that support the safe operations ofresidences and essential businesses.

10. Road and transportation construction and maintenance

11. The operation, maintenance and repair of criticalinfrastructure (railways, dams, bridges, highways, flood controlstructures, irrigation and water management structures, etc.).

12. Motor vehicle, auto-supply, auto and motor-vehicle-repair,including bicycle repair, aircraft repair, heavy equipment repair,watercraft/marine craft repairs, car and truck dealerships andrelated facilities.

13. Hardware stores and stores that provide hardware productsnecessary to the essential operations of residences andbusinesses.

14. Safety supply stores (safety gear and Personal ProtectiveEquipment).

NOTE: If a business is not listed here as an essential service,it can still continue to operate if: (i) it is not specificallyprohibited from offering services in a location accessible to thepublic; and (ii) the business doesn't fall under previous business, workplace and facilityclosures.

A business must still follow all other public health orders andguidelines for workplaces, including: (i)maintaining physical distancing; and (ii) prohibiting people fromcoming to work sick. Workplaces that are not otherwise restrictedor ordered to cease offering close-contact services or servicesaccessible by the public can have more than 15 workers on a worksite as long as they follow all public health guidelines, includingphysical distancing measures.

On March 30, 2020, a Ministerial Order suspended limitationperiods retroactively from March 17 June 1, 2020. ThisOrder only applies to enactments listed in Appendix "A"to the Order, which list does not include the Builders'Lien Act. As a result, limitation periods under theBuilder's Lien Act are not suspended.

However, the Order also suspends all procedural time periods inactive or intended proceedings from March 17-June 1, 2020. Unlikefor limitation periods, the Order does not specify that thissuspension applies only to the enactments in Appendix"A".

It is accordingly unclear whether the suspension of proceduraltime periods applies to every proceeding under the Builders'Lien Act or otherwise. Given this lack of clarity, parties shouldmeet the deadlines in the Builders' Lien Act.

Alberta's Workplace Guidance for Business Owners can befound here.

A summary of construction and related activities that maycontinue in Saskatchewan during the pandemic are listed below.Saskatchewan's list of essential services can be found here.

Construction and Related Activities

1. Construction firms.

2. Services performed by trades people, residential andcommercial installation and landscaping services.

3. Rental equipment.

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Construction Through COVID-19 In Canada: A Guideline For What Each Province And Territory Is Doing [Current As At May 4, 2020] - Real Estate and...