Construction through COVID-19 in Canada: A Guideline for what each Province and Territory is Doing [Current as at May 20, 2020] – ICLG.com

COVID-19 continues to have a profound impact on construction activity in Canada.

COVID-19 continues to have a profound impact on construction activity in Canada. Governments have limited what construction activities can continue during the shutdown, issued emergency orders affecting construction litigation, and changed health and safety protocols at site.

The impacts to construction projects, litigation, and health and safety vary across provinces and territories. Below is a guideline resource for how each province and territory is managing COVID-19s impact on the construction industry. For each province and territory we have assembled and laid out,

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

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

3. the recommended guidelines for increased health and safety practices for construction sites.

Should you have any questions about whether your construction project can continue during the pandemic, or how these orders may affect your existing or future litigation, please feel free to contact us. We will keep this bulletin updated on a weekly basis.

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

A) Ontario

B) Quebec

C) British Columbia

D) Alberta

E) Saskatchewan

F) Manitoba

G) New Brunswick

H) Nova Scotia

I) Prince Edward Island

J) Newfoundland

K) Yukon

L) Northwest Territories

M) Nunavut

A) Ontario

1. List of Permitted Construction and Related Services

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

Construction Services

1. Construction activities or projects and related services that support construction activities or projects, including demolition services.

2. Land surveyors.

Construction Related Services

3. Lawn care services and landscaping services.

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

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

6. Hardware stores.

7. Garden centres and plant nurseries, including greenhouses that engage in retail sales to the public.

8. Business that provide land registration services.

9. Businesses that deliver or support the delivery of services including:

Sewage treatment and disposal.Collecting, transporting, storing, processing, disposing or recycling of any type of waste.Potable drinking water.Critical infrastructure repair and maintenance including roads, dams, bridges etc.Environmental rehabilitation, management and monitoring, and spill clean up and response.Administrative authorities that regulate and inspect businesses.Professional and social services that support the legal and justice system.Government services including but not limited to policing and law enforcement, fire and emergency services, paramedics, coroner and pathology services, corrections and court services, licences and permits.Allotment gardens or community gardens.2. Impact on Limitation Periods and Procedural Deadlines in Litigation

On March 16, 2020, the Ontario Government issued an emergency order suspending all limitation periods and procedural deadlines in litigation. However, effective April 16, the Ontario Government exempted the limitation periods and procedural deadlines in the Construction Act from the emergency order. For more details on these changes and the impact on liens, holdbacks and construction litigation generally, please see our prior bulletin on this topic here: Show Me the Money Government of Ontario to Amend Emergency Order to Allow Release of Holdbacks. The complete regulation exempting the Construction Act that took effect April 16 can be found here.

3. Guideline for Increased Health and Safety Practices

See here for the Chief Prevention Officers guidance to the construction sector in Ontario on health and safety related to COVID-19.

B) Quebec

1. List of Permitted Construction and Related Services

Starting May 11, 2020, all construction industry worksites from all sectors of the construction industry including residential, civil engineering and roads, institutional, commercial and industrial can resume their activities (however, admin staff must continue teleworking). Quebecs notice in this regard can be found here.

A summary of the more limited construction and related activities that could continue in Quebec until May 11, 2020 are listed below.

Construction Activities

1. Construction firms, for emergency repairs or to ensure safety

2. Electricians, plumbers and other trades (emergency services only)

3. Equipment rental firms

4. Landscaping and landscape maintenance (including nurseries, garden centres and businesses selling swimming pools)

5. Construction and renovation of residential dwellings, for any immovable where the taking of possession of a residential unit must take place on or before 31 July 2020, including the supply 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 in proper working order (bridges, municipal buildings, etc.).

7. Construction, maintenance and upkeep of essential activities in connection, in particular, with public and private infrastructures 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, alarm systems, etc).

10. Household appliance maintenance and repair.

Quebecs complete list of essential workplaces can be found here.

2. Impact on Limitation Periods and Procedural Deadlines in Litigation

By Order number 2020-4251, the Chief Justice of Qubec and the Minister of Justice suspended prescription periods (limitation periods), forfeiture periods and procedural deadlines until the public health emergency is lifted or otherwise amended by further order. The joint ministerial decree can be found here.

Construction hypothec periods are forfeiture periods and are therefore suspended under the Order. However, contractors are being advised to act as if the deadlines still apply and to register their notice of hypothec, and notice of intention to exercise a hypothecary right within the requisite time periods (the land registrar is still open to receive notices).

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

3. Guideline for Increased Health and Safety Practices

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

C) British Columbia

1. List of Permitted Construction and Related Services

A summary of construction and related activities that may continue in British Columbia during the pandemic are listed below. British Columbias complete list of essential workplaces can be found here.

Construction and Related Activities

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

2. Plumbers, electricians, elevator maintenance providers, exterminators, property management services, building systems maintenance and repair technicians, engineers, fire safety and sprinkler systems, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and daily essential operation of residences, commercial buildings, and ski area infrastructure and facilities.

3. Land registration services.

4. Workers who provide or support inspections to ensure worksites are safe for workers; and who investigate, process and manage claims for workplace accidents, including services related to the care, treatment and provision of workers compensation benefits to those impacted.

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

2. Impact on Limitation Periods and Procedural Deadlines in Litigation

Ministerial Order 86/2020 suspended limitation periods and procedural time periods from March 26, 2020 until the state of emergency is over (which as of May 20, 2020 is scheduled for May 26, 2020, see here).

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

3. Guideline for Increased Health and Safety Practices

Please see here for the health and safety measures the British Columbian Government has indicated all construction sites should follow: Guidance for Construction Sites Operating during COVID-19 Pandemic.

D) Alberta

1. List of Permitted Construction and Related Services

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

Construction Activities

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

2. Construction projects and services required to ensure safe and reliable operations of critical provincial and municipal infrastructure, including transit, transportation, energy and justice sectors beyond day-to-day maintenance.

3. Construction work and services, including demolition services, in the industrial, commercial, institutional and residential sectors.

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

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

6. Construction projects and services that are required to ensure safe and reliable operations of critical energy infrastructure or support supply chains.

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

Construction Related Activities

8. Land registration services.

9. Businesses that support the safe operations of residences and essential businesses.

10. Road and transportation construction and maintenance

11. The operation, maintenance and repair of critical infrastructure (railways, dams, bridges, highways, flood control structures, 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 and related facilities.

13. Hardware stores and stores that provide hardware products necessary to the essential operations of residences and businesses.

14. Safety supply stores (safety gear and Personal Protective Equipment).

NOTE: If a business is not listed here as an essential service, it can still continue to operate if: (i) it is not specifically prohibited from offering services in a location accessible to the public; and (ii) the business doesnt fall under previous business, workplace and facility closures.

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

2. Impact on Limitation Periods and Procedural Deadlines in Litigation

On March 30, 2020, a Ministerial Order suspended limitation periods retroactively from March 17 June 1, 2020. This Order 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 the Builders Lien Act are not suspended.

However, the Order also suspends all procedural time periods in active or intended proceedings from March 17-June 1, 2020. Unlike for limitation periods, the Order does not specify that this suspension applies only to the enactments in Appendix A.

More here:
Construction through COVID-19 in Canada: A Guideline for what each Province and Territory is Doing [Current as at May 20, 2020] - ICLG.com