Ted Betts: Wait, the numbers seem to be slowing down a bit. And I've just got some introductory remarks as, as people continue to come in before the main program goes. So welcome everybody to Gowling WLG in our spring Construction Law forum. My name is Ted Betts, I'm the head of our infrastructure construction group, going nationally and internationally. very delighted. See everybody, at least virtually, I see a lot of familiar names, we would be great if we could be collecting together and shaking hands and tipping coffee sharing coffee together, or something. That's not to be this year. But I do hope everybody's healthy and safe. It's obviously been a very challenging year for everybody. In particular, in our sector. I think we're on our third or fourth or fifth lockdown. Now I've kind of lost count. It's been going on for so long, it seems across the whole country. With really unmanageable, unimaginable impacts, and delays on our various projects, not to mention the concern we all have for our personnel and our staff, as well as our families and friends. Well, we're here to help with the unimaginable, to talk about a lot of that today, because the unimaginable, needs to quickly become very imaginable when we are trying to complete a project. And we have to deal with it in real life. So we're going to be tackling some of those issues today. For those who are new to our construction law forums, we hold these twice a year, once in the spring, and once in the fall. We've been holding them in person in Toronto for about six or seven years now. And it's a great time to gather and collect with like minded industry focused content and updates as the law evolves in our sector. Since we're online, we have expanded nationally. So this is a great crowd. Looks like we're approaching 200 people we had 300, what was lost count 355 people registered for this program, which is really exciting and great for us to hear to see that we're reaching and connecting with so many people across the country in our sector. We've got a pack program, though, so I want to get underway. Just a couple of housekeeping notes. We we have everybody muted during the program, feel free to ask questions using the chat features. We are in a typical zoom format, though, instead of a webinar format. Because later on, we will be unmuting everybody as we join into the breakout rooms, which is something new that we're adding. And we'll talk about in a minute as well. The program is being recorded. And so in a few days, you'll be able to access it on our website. If there are others in your organization, you think you should see it or benefit from them. Of course, you can always reach out to any one of us to follow up with follow up questions or in our breakout session, which are going to be province specific. Feel free to ask your questions then, as well. We, we have an exciting program. There's a lot of new that has evolved over the last while obviously COVID is on all of our minds. We've got a great presentation today from two of our employment lawyers. Everybody has been quite focused on whether projects can continue or be shut down, or what are the delay claims. We're going to spend some time today talking about the actual impact on employees in the workplace with two of our amazing experts on that. Cindy crew is going to tell us a little bit about the new CCDC two that came out in December, and some of the updates to that standard form contract. But we're going to start as we as we typically do with these construction law firms with a case law update so that everybody's aware of what's evolving in law in our sector. And so Hill shore are part one of our partners in Kitchener Waterloo office is going to take over right now and tell us about what's new and in law. Over to you sale.
Sahil Shore: Thank you, Ted. Good afternoon, everyone. My name is Sahil Shore. I'm based out at the Waterloo Region office and I'm going to speak to you today about the cases. I've picked six from the last year which I my written on all six of them. So I invite you to you know, look at these building brief articles on these cases on our website. But today I'm going to focus on this six. So I'm going to start with an occupational health and safety case having an impact on construction project in the city of Sudbury. Next slide please. So this is the most recent case from Ontario Court of Appeal. Released in late April we issued a building brief on this to Sharon a couple days ago in this case, what happened is in a construction project, an individual is struck and killed by a roared. were driven by an employee of a painting company which is hired by a city of Sudbury, and both the company and the city is charged with violations of the Occupational Health and Safety Act regulation. The city is charged as both a constructor and an employer. The matter goes to a hearing and it is determined and which was upheld at the Divisional Court that the city was neither an employer nor a contractor for the purposes of the Occupational Health and Safety Regulation. Next slide. The Crown appealed the decision to the Ontario Court of Appeal and one of the questions that was posed to under a court of appeal was whether or not the city was an employer under the Occupational Health and Safety Act regulations. And to answer this question, it was necessary to determine whether control was requirement was a requirement, Blair city hired a third party, which happens in the construction in the construction projects where an owner and a contractor in the contract requirements deal with health and safety concerns. And then, if it was found that the city was an employer, did the city have a successful due diligence defense Court of Appeal went in a very thorough analysis pertaining to several definitions, including most importantly of an employer and a constructor, and held that the city was in fact an employer within the meaning of the Occupational Health and Safety Act, because the city employs its own safety inspectors to go on site on numerous occasions, and therefore it was liable unless it established unless the city was successful to establish the due diligence. Defense. Next slide, please.
Sahil Shore: And the analysis continued by the Court of Appeal to basically say that the employers are in a position of an insurer who must take certain health and safety regulations compliance with before work is undertaken. And with respect to the city's due diligence, defend the city argued that it met its obligations through its tendering process. However, facts concerning the due diligence were not sufficiently addressed and the matter pertaining to the do due diligence suspense is sent back for another hearing. So depending on how that herring proceed and what comes out of it is a case that has very, very broad implications to construction projects. Next slide, please. And the significance really is because it applies to infrastructure, construction projects, and owner liability as an employer under Occupational Health and Safety Act. And city as an owner assumes heightened in liability by virtue of sending its inspector despite not directly overseeing the grading work, and there's an overlapping duties of workplace parties that can exist in construction site under Occupational Health and Safety Act. Next slide, please. So the next case that I'm going to speak to you about is the case of trembler. This is again a 2020 decision from Ontario's Superior Court of Justice pertaining to what happens on a construction project, very frequent way where a subcontractor enter into a contract to supply material and services and there is no direct contract between an owner and the subcontractor and when a subcontractor is not paid by the party that it has a contract with. And that's exactly what happened. In this case. trembler entered into a subcontractor subcontract with a numbered company who had a contract with the owner did not get paid, and Trump Templar then sued the owner for 30 approximately $31,000. Next slide, please. And the contractor files for bankruptcy and trembler of course is entitled to register a claim for lien under construction lien act but did not register a claim for lien. Instead, it started a breach of trust allegation and claim against the owner number one and also a claim of unjust enrichment against the owner. Next slide, please. The court held that that trembler did not have a right to either breach of trust productions by the construction Act or the unjust enrichment doctrine. Because there was no contract between trembler and lightning batik as the owner. It meant there was no trust fund which were held in trust for trembler and the sections eight of the construction act obliges contractors and not owners to retain trust funds for the benefits of the subcontractors. Next slide please. And the analysis also continued to do to suggest that align trembler to use the trust claim would create a new remedy not contemplated by the construction act, and would effectively require homeowners to ensure that contractors distribute their funds properly, and the Divisional Court was not willing to take the step. Next slide please. And with respect to travelers claim for unjust enrichment, the Court held that the contract was between the owner and the contractor which provides a curious reason to prevent unjust enrichment claims by subcontractor against owners. And in this case, the Divisional Court went a step further and confirmed that the construction Act does not provide for unjust enrichment plans where there is no privity of contract ie between the subcontractors and owners. Next slide, please. And what is the significance it is very relevant decision for subcontractors where contractors face bankruptcy and again, also very important to owner to think about when there's no privity of contract with subcontractors and trust claims are made against them. The next case I'm going to speak to you about is a case involving the construction of in hospital
Sahil Shore; from and really the analysis that come into play when a project is delayed and not by one party. But there's concurrent delays taking place on the project. And the court is asked to analyze the delay in order to make a finding so in this case, a subcontractor and elevator contractor brought a $1 million claim against the against the contractor for unpaid services and materials the contractor counterclaim for 2.2 million mostly related to the damages. And it argued that other concurrent delays caused during the same period by subcontractors and the subcontractor who commenced a million dollar claim was responsible for its share of that delay. And what it had to establish was that the subcontractor was responsible for delay causing the contractor to experience losses. Next slide, please. And the court had to go through analysis of concurrent delay, which has the industry participants, you will know is complex and quite sometimes speculative because it requires a very, very comprehensive baked on our overall delay and apportioning of time and responsibility and cost, but in this case, the court provided very realistic view and this is the case that has been welcomed by delay consultants, that it is not necessary for the independent causes of delay to occur exactly at the same time for them to be considered concurrent. Instead, it is rare that the concurrent delays start and end at the same time. Concurrent delays are more commonly experienced as overlapping events. So in this case, the contract the subcontractor was delayed resulting in some damages, but it did not cause the material delay to the entirety of the project. Next slide, please. So, again, significance is the direction for assessing concurrent delay that will result in fair and just results. And the courts have recognized that on the complexity of a construction project, and that it is sometimes unrealistic to reach a precision determination as to who's responsible for the delay. The next case I'm going to speak to you about is again, the construction Act and the trust provisions. The case is from the Ontario Court of Appeal involving urban core, Cumberland, a residential condo developer, goes bankrupt grant is granted insolvency protection under both BIA and CC double A the Cumberland group starts the proceeding under BIA proposal trustees quote, authorized approved investing order and sale process order to conduct sales is granted in order to sell the condos which were built. Next slide please. And what happens is a further order is granted allowing Cumberland group protection under CC double A and appointed proposal trustee for the sales to continue under CC double A but what happens is that The contractors and the subcontractors who build and supplied services time and material to the project in question.
Sahil Shore: Were owed $3.8 million. And they claimed, they claimed statutory section nine one trust arose in favor of banned from the from the sale proceeds of condo units. Next Next slide, please. And the Court of Appeal in this case, reverse the motions just rejection of Section nine of the trust provisions from the construction. And it basically said that section nine of the construction Act provides for a trust in favor of unpaid contractors over the sale proceeds of a certain property. And because the monitor had brought motion and the judge had determined trust not created was not created because of the sale proceeds. It was not because as a result of them not being owner, that does not matter. Next slide please. And the court agreed with parents that the units were sold by the owner irrespective who it was. And the fact that the monitor or the Cumberland group were entitled and entered into sale agreements, did not declare the fact that they were the sellers of the units. Therefore, the units it was irrelevant as to who effectively was the representative of the owner and who had the control over the sale process. Next slide, please. So it confirms that the section nine of the construction acts create a valid trust in accordance with the general trust law does not conflict with either BIA or CCW A, and the trust that is created under Section nine can only be displaced by the doctrine of paramount to see if it conflicts with specific priority. And the court also distinguished this particular case from a number of other cases. Next slide, please. And again, this is of significant for insolvent owners. And it also provide reassurance to the contractors that may hold a valid trust to the sale proceeds, but aren't contingent on the fact that the sale proceeds exceed that debt and other priorities planted under the federal legislation. Next slide, please. So the last two cases, I'm going to talk to you about our duty of good faith and the most recent cases from Supreme Court of Canada. This one released in late 2020. You know that that basically is the duty of good faith cases that the facts both this case and the case on base tax services were together but the decisions were released at different times. In this case, a group of condo corporations pay crust engage the contractor for vendor maintenance agreement for a two year term. And there was a provision that you know, big rescue could terminate without cause for giving 10 days notice. And they had a separate agreement for summer maintenance. Next slide please. And to avoid souring the relationship and giving the notice pay cress decided to learn forming the contractor of the termination decision until after the summer work was complete. And therefore in April 2013, they terminated the agreement for the following week winter due to multiple complaints and throughout spring and summer. They had several discussions with the directors of Bay crest to renew the winter contract for additional two years. And in these discussions. Big press did not disclose intention to terminate the existing winter contract and that was the issue that went all the way to Supreme Court of Canada. Next slide please. And, and the analysis from both the lower courts and all the way to Supreme Court found the Supreme Court of Canada in particular found that big press breached its duty of honest performance and knowingly misled the contractor into believing that big fuss would not terminate the winter contract. Next slide please. The significance is very very important in negotiation of the construction contracts and in also in implementation of the contracts, including renewals that the court has clarified the duty of honest performance and the obligations pertaining to the performance of the contract and rights of renewals. The scope of duty is controlled in links to the performance of the terms of the contract. Dishonest performance is highly fact specific. And parties may be found to mislead where they failed to correct Miss abrogation have prehension caused by own conduct and that what happened in this case, the next case and the last case I'm going to speak to you About this again,
Sahil Shore: from Supreme Court of Canada based tech services, the decision is released late early this year, we wrote a building brief on this case, the facts involved again, a termination of the contract and not a contract not getting renewed. Next slide, please. And the cost of you know, the contract had an operating ratio as to how far the garbage would go in order for the contractor to collect money from the Greater Vancouver sewerage and drainage district. So waste tech brought a claim alleging that Metro breached its duty of good faith. Then it allocated waste that prohibited it from meeting its target profit. And again, all the way to the Supreme Court of Canada. Next slide, please. And the Supreme Court of Canada held that if a contract allows for a choice, then the parties must exercise their discretion in terms of that choice, which has to be consistent with the purpose for which it was granted in the contract, or in the terminology of the organizing principle in Basson to exercise the discretion reasonably. Next slide, please. And then a party's decision must be connected to the reason it was given to the power to make that decision in the first place. And it goes on to explain and provide context, both what reasonable and unreasonable circumstances are and independence in large part in terms of the context and the intention of the parties, as disclosed by the parties under their contract. Next slide, please. Again, another good faith series cases and that provides guidance on discretionary powers both objective measurement and subjective measurement. And, and also the discretionary powers not validly susceptible to objective measurement. Next slide, please. Again, something to think about giving these two directions from the Supreme Court of Canada on to the cases in terms of you know, how your contract is structured, and how you're using the terminology and the manner in which the provisions are drafted in order to implement the work and reliance on the underlying contract. Next slide, please. So that's it. For me. I am going to be monitoring the chat functions. If you have any questions pertaining to any of the cases that I've spoken to please send them across. Over to you Cindy. Thank you.
Cindy Kou: Okay, thanks Sahil. Hi, everyone. Thanks for taking the time to join us today. My name is Cindy Kou. I'm a commercial associate in the Toronto office of Galen W LG. I work primarily in the construction and tech sectors, and I draft a lot of construction contracts. So in our 10 minutes together, I will highlight five of the major changes in the new CCDC to my colleagues, Ted Betts, Magda Hanebach, and Karina Labelle have written an in depth article about the changes in that article is available on our website. Just before we jump in, I had an interesting question from a client recently about a CCDC. To that I'd like to pull the audience about. So Shannon, if you could please bring up the poll. I'd like to know if anyone has ever used or considered using a CCDC to primarily to buy or sell a major piece of equipment for a construction project. Well just give everybody a minute to respond. Shannon, do we have results? Okay, interesting. Thank you everybody for responding. So for anybody who answered yes or who is interested in a construction contract that relates to equipment supply, I would love for you to get in touch with me and tell me about your use case, especially if your equipment involves some technology transfer or licensing. So moving back to our scheduled topic, I think Shannon, I see we have a few audience members who are new to the CCDC. So 10 second primer CCDC stands for the Canadian construction documents committee, and it this committee creates standard form construction contracts that are widely used in the sector. Each form has a number and the year the number refers to the type of contract and the year refers to the last time it was updated. So the CCDC two is a stipulated price contract between an owner and a contractor. It was last updated in 2020. And before that in 2008, the CCDC is hoping that everyone will use 20 New 21 to transition from the CCDC to 2008 to the CCDC to 2020. The two CCDC to 2008 seals will be available until the end of the year and anybody wanting to exchange their old ones for the new ones will be able to do that. And we expect at the other CCDC documents to be updated in due course. Next slide, please.
Okay, so highlight number one is that the CCDC tool now has captured the prompt payment and adjudication legislative changes brought in by the Ontario construction act in the last few years. As many of you already know, various other jurisdictions across Canada are considering adopting prompt payment and or adjudication mechanisms as well. So the CCDC two now has this concept of payment legislation, which means any legislation that relates to payment under construction contracts at the place of the work. And so now the new CCDC two has updated requirements for invoice contents, procedures for processing invoices and payment timelines, and its contractual framework, of course, prioritizes compliance with payment legislation where it exists, so this will help the CCD. This will help the CCDC to stay relatively timeless, as other jurisdictions bring payment legislation online. In the interest of time, I won't run through all of the details on this slide, but I will like to points regarding payments. Just as an example of that prioritization of compliance with the payment legislation. The new CCDC two requires holdback to be paid within 10 working days of the expiry of the lien period subject to payment legislation. In Ontario, the construction Act requires release of hold back on the day following the expiry of the lean period. So notwithstanding the 10 working days, part owners in Ontario will still need to release hold back on the day following the expiry of the lean period. I'll also note that the new CCDC two has picked up two very popular supplementary conditions in respect of invoice content. So now every invoice with every invoice, the contractor must submit evidence of compliance with workers compensation requirements, and for every invoice after the first step deck. The CCDC team now also acknowledges that the dispute resolution provisions in the contract do not interfere with any adjudication that is prescribed by law. Next slide, please. Highlight number two, let's talk about this new concept called ready for takeover with this concept, the CCDC two has created a more rigorous substantial performance of the work milestone. So the old definition for substantial performance of the work was referred to the definition under applicable law. And some jurisdictions didn't have a statutory definition for substantial performance. And so the CCDC supplementary No. And so the CCDC definition of substantial performance of the work was simply when the work was ready for use for the purpose intended as certified by the consultant. So now what the CC the new CCDC has done is it's created this ready for takeover concept that sits on top of any available statutory definition. So as we can see in the list on the right side of the screen, the requirements for contractor to apply for ready for takeover include the work reaching the statutory definition of substantial performance, if any exists, the we're complying with the requirements for occupancy as built drawings completed as of the date of that application being provided. And you know, if specified it by the contract requirements, various other requirements. So naturally, we're the CCDC to had substantial performance of the work as a milestone or trigger for various obligations under the contract. This has now been updated to reference ready for takeover as a milestone instead. Next slide, please. Okay, highlight number three for highlight number three, we'll talk about this brand new concept of early occupancy. So early means before the work has reached, ready for takeover the owner can occupy early if the contractor agrees, acting reasonably, and the relevant authorities approve, the owner can occupy all of the work or part of the work. And as you can see on this slide, there are different obligations that occur depending on whether the owner occupies part of the work or all of the work. And in the interest of time, we'll move to the next slide, please highlight number four on construction safety, the CCDC two makes it clear that the contractor is responsible for the health and safety program at the site. So you'll see the underlined words in the first bullet are the additions that the new CCDC two has added to clarify the scope of the health and the of the contractors health and safety obligations. The owner now also has to require all of its armed forces, the consultant and any of the owners contractors to comply with the Health and Safety Program at the site. Both parties are expressly obligated to comply with health and safety legislation and the Health and Safety Program at the site. It may still be a good idea to keep the previously very popular supplementary condition clarifying which party will be the constructor or prime contractor depending on your jurisdiction. For health and safety purposes. I know that I will definitely be watching the Sudbury decision relating to this point, as the hill talked about earlier. Next slide, please.
Last highlight on indemnification, the scope of the indemnification provision under the new CCDC two has changed in four notable ways. First, there's a narrowing of the scope of the mutual indemnity for negligence. It used to be that each party indemnifies The other for its own negligent acts or omissions, and for anyone whose acts or omissions the indemnifying party is liable for. Now, each party will still indemnify the other for its own negligence, but only the negligent acts or omissions of those for whom the indemnifying party is liable. So this reads like a catch up change, but I think it's important for each party to think through the implication of this change. In their own context. The contractor is still under or is under gc 3.6 liable to the owner for the acts or omissions of its subs and suppliers. And maybe it may be a good idea to clarify what the scope of this indemnity means in the context of that obligation. Second, the mutual indemnity for parties losses, is now limited to direct damages only. Third, the indemnity for all third party claims is now uncapped. This is a significant change Previously, only third party claims for death, bodily injury and property damage were uncapped. Third party claims now joint liability for toxic and hazardous substances, patent infringement and issues with title to the place of the work as uncap liabilities under the CCDC. Lastly, the indemnity cap for a party's own losses for which insurance is required to be provided has doubled, going up from $5 million to $10 million. This is because the CCDC 41, which is the insurance document was also updated at the end of 2020. So for any projects that had bid closing after December 14 2020. These changes, among others, were would be an effect. So what are the takeaways? Number one, try to review and update your CCDC to supplementary conditions this year. And number two, have your insurance advisors or risk management team take a look at the CCDC 4120 20. Sooner rather than later, ask these folks to make sure that the insurance requirements in the new CCDC 41 Meet your products needs and that your existing coverage meets the new contract requirements. We've helped a lot of clients update their CCDC TOS already and would be happy to answer any questions. Just before I hand it off to Neena and to shore a little reminder for anyone interested in talking about equipment supply and construction contracts, especially those that involve technology transfer licensing. I'd love to be in touch and learn more about your use case. So thanks, everyone, and have a great afternoon. Over to you Neena and Tushar.
Tushar Anandasagar: Good afternoon, everyone. Thank you so much for taking time out of your busy lives and, and busy afternoons. Depending on where you are. It could be morning on the west coast. But thank you so much for joining us, Neena and I would like to walk you through everyone's favorite topic, you guessed it, it's employment law in COVID-19 times. So maybe, maybe Neena, I can start us off with respect to COVID-19 workplace safety plans. And really, I think I think a good way to think about this particular requirement under law. And I'd like to frame it in terms of a requirement is that this is mandatory. We are in month 15 of the pandemic leading into month 15 of the pandemic. And and at this point in time. You know, we have been we've been seeing reports from various regulators around the country, saying we have hired 150 New enforcement officials to walk around your job site and enforce the mandatory requirements under law. And so you know, really this slide should be called Mandatory key considerations for your COVID-19 workplace safety plan. You know, we've borrowed these from the Ontario Ministry of Labor's guidance documents as well as the guidance documents from the PS HSA, the HSA and a couple of other industry regulators as well. And I see Neena has just put up a very valuable link in the chat where you can actually get a template a preferred template COVID-19 safety plan in order to build yours out. I'd like to talk about the key considerations really common sense stuff, how are you ensuring that your workers know how to keep themselves safe? What are you doing to screen active screening day by day? How will you control risk of transmission? What are you doing to make sure that if there is a potential case you are taking all appropriate legally required steps to cover off against those risks? How will you manage risks caused by workplace changes restructuring of workflow staggering of shift start times, you know issues that are coming up day by day, you know, moving around of break rooms and in closing off of publicly traded Simple areas, how will you make sure your plan is working, I'd like to reinforce that last piece, what's the point of going to the trouble of developing a COVID-19 workplace safety plan, if, when a public health regulator attends on site, you have to pull it out and blow a plume of dust off of it, not effective. So we want to be mindful of enforcing the plan not so much enforcing but adhering to the plan, and making sure that all of our employees are doing the same. Train update revisit your plan regularly, because these days, the regulations are changing faster, and with shorter notice than ever before. And and, you know, this is I would say, one of the one of the longest standing requirements under Occupational Health and Safety Law, which applies to a construction employer just as much as it does to any other employer. Neena, this is a common sense point. Maybe we can talk a little bit about, you know, one of the question marks that employers are dealing with in these particular times.
Neena Gupta: Well, thank you Tushar, I have to tell you, the number one question I get is, what happens if there is a positive COVID 19 test in the workplace? How do I respond? And I feel like screaming at them? Well, that's dealt with in your workplace safety plan that we worked on about 10 months ago, which obviously you haven't looked at, and you've been lucky enough that you haven't had a positive case and 10 months, you've forgotten about it. So that's number one. Number two is your public health authority. So public health Ontario has offices and subdivisions in each jurisdiction, should be your next best friend. And when in doubt, be conservative. I don't know if you've got a slide on Summit. Well, I think we're going to get to some of the nifty things that you can do in your workplace later. But I really encourage you to consider COVID-19 from that classical health and safety obligation that you have as a constructor, general contractor or subcontractor. Next slide, please. So I never take this one, which is vaccination in the workplace, which is the one I do get all the time to share. And you and I have a bit of reputation in this area. And the number one question I get asked is, can you legally require a employee to get vaccinated and I would say, a qualified yes and why it's qualified as if you're unionized. And I looked at the list before we just joined in there are some unionized workplaces, there's a whole issue of negotiating with your union on mandatory vaccination. Secondly, even if you're not unionized, you will absolutely have to deal with issues regarding human rights, disability, religious exemptions. And finally, and I think this is the right thing to ask is, Is this the right way to do it in your workplace? Because do you really want the push back? The pushback is actually less than we thought I listened to a great article to share a great podcast this morning, about how vaccine hesitancy in Canada is actually being actively reduced. So as people see 1000s of people being vaccinated, and as people see the low rate of risk, people are more open and accepting of vaccinations. If you're going to have the vaccination in the workplace, if you're going to sort of go and encourage it, we both believe the best way to do it is by incentivizing people we found that really works. The number one incentive, give people paid time off to get vaccinated. So as soon as they get that appointment, tell them to go and take it so that they're not trying to wait for an appointment two weeks now from a set on a Saturday evening. And if you're going to pay for it, and we know that several jurisdictions have mandated mandated vaccination pay, you can ask for proof of vaccination for the purposes of reimbursing them for the time that they missed. We hear a lot of talks about vaccination passports in the interest of time, I'm not going to deal with that. Let's just say we're waiting for Premier Ford and Justin Trudeau to figure out what they want to do on authenticating whether a person has been vaccinated or not.
So where do we go from here to Tushar? We've talked a little bit about the pinch points. And you know, you and I have really discussed what constitutes a real human rights exemption to the obligation to be vaccinated. Interestingly, the cases we have so far deal with masking now, I don't know about you, but now it's like keys, you know, the hook to the car, my purse or wallet and my mouth. I don't leave the house without it, but people object to it. There's been some really good cases which say just because you say you have a disability doesn't mean from a human rights perspective. You don't have to prove that you can't use the mass due to a disability, so that's number one. Most people who are working in construction are not going to be so deprived of lung power, that they can't wear a mask. Why is that important? That tells me a philosophy of the tribunals to share that they're going to look behind an allegation, oh, I can't do this, because I'm disabled with some degree of rigor. And they're not going to allow a legal argument to become a vaccine hesitant or anti vaxxers excuse not to get vaccinated. There are some risks. We talked about it. Certainly, if somebody is required to get vaccinated, we've seen that in the healthcare sector, if they have a side effect that would be covered by worker's comp. If there's a massive reaction, there may be liability, I don't think the employer would be held liable. But the employer would be named I'm sure. And of course, that's why we say incentivize people rather than force people. So and then, I guess we get into workplace testing, too. Sure. And I know you and I've done a lot of work on this rapid antigen testing program that I think is a very useful tool. I'm wondering if you can tell us what you've learned about that?
Tushar Anandasagar: Most definitely. Thanks so much, Neena. I think the I think the really interesting thing about framing things in terms of vaccination, and then moving straight over to workplace rapid antigen testing, is that mandating vaccination or considering that issue and incentivizing vaccination now, it focuses a little bit on where we are going forward, we're still in a supply limited state, we don't have we are assuming that vaccines will be freely available to mandate, which we don't quite have just yet. But workplace rapid antigen testing is I truly believe where employers should be focusing their attention as we speak right now. So an interesting case that came out of our backyard over here and in Kitchener Waterloo Region is the seal AC versus the crescent care, nursing and retirement homes decision, I'd like to chat about this decision. But maybe for those that don't quite know what rapid antigen testing is, or what it entails a little bit about that. And, you know, a distinction points between the rapid test and the quote, unquote, brain tickler that we see on the news, and that isn't super comfortable for those.
Neena Gupta: Sorry, it is removing your brain through your sinus test, like it is an awful PCR test. I don't like it, but tell us why rapid antigen testing is better?
Tushar Anandasagar: Absolutely. Yeah, no, I'm happy to. So we have, we have this concept under the rapid testing framework of supervised the three Ss supervised self swabbing self being the key implication there, there isn't somebody leaning into your car with a angled Q tip, you know, tickling and removing parts of your brain from your sinuses, you know, effectively it is as easy as brushing your teeth in the morning. That's one way. That's one way our premier actually framed it. And so what is the rapid antigen test versus a PCR test, the PCR test is administered, at least today by public health, you go into your public health unit, local branch, your hospital, your testing center drive the facility, whereas your supervised self swabbing can actually occur pretty much anywhere, you know, there's really aren't very many limitations to it. And the turnaround time for a quote unquote, preliminary positive or a preliminary negative is 15 minutes, just about 15 minutes, which is much faster than the 24 Plus, you know, possibly three, four days depending on how busy public health gets to deal with the PCR test. And so we're talking about speed here. The reason I braised the crescent care case is because they actually looked at a policy in a unionized environment where an employer mandated mandated that employees coming in had to submit to a PCR test every couple of days every set period of time. And the union filed a grievance. They said this is invasive. We have a Griever she suffers from successive nosebleeds. We have we have real significant issues with respect to privacy. I'd like to talk about one particular quote that the arbitrator raised which is which is just I love it. In my view, when one weighs the intrusiveness of the test the brain tickler a swab up your nose, a swab up your nose every 14 days against the problem to be addressed, which is possibly significant risk to life in a long term care facility. And I don't know if you've turned the news on recently, Neena but long term care facility preventing the spread of COVID-19 and a home the policy is a reasonable one, a reasonable one. And so this was the more invasive PCR test versus we're talking now about the lesson be significantly less invasive brush your teeth, you know rapid antigen test. And and so where do we go from here? We think of this as a reasonable Low Risk proposition for an employer that they can mandate in real time today, as long as they can get their hands on rapid antigen tests, and as long as they're meeting the relevant requirements within their jurisdiction. So I'll talk briefly about this. I know we're running up against the timer here. So the first stream at least for Ontario employers, we have this provincial antigen screening program, which is basically public health's baby, there is a mechanism for signing up, they will run the show, they will post up they will set up a tent, they will come on in train your stuff and effectively administer this at your workplace. Key focus being on workplace transmission. We saw these in the early days that you know, some of the really large employers training collection disclosure, this is their baby, they effectively are offloading some of the risk, so to speak, but you have public health officials crawling all over your workplace. So you know, take that as, as it will. Next slide, please. Now, we also have this second framework, which is effectively a form of deregulation, and it's called privately initiated testing, at least it is in Ontario, it might have a different name in your respective jurisdiction. We've seen some similar offshoots in Nova Scotia a couple of other provinces. So what is privately initiated testing? Basically, it allows a third party private sector enterprise construction employer to deploy a rapid testing program in a controlled setting at their workplace. Why is this important? It operates outside of at least notionally outside of the public health system, although there are some tie backs which are required to meet. So we're talking about, you know, occasional reporting of preliminary positive tests, and certain other compliance requirements that might be in place for quality control for these fancy rapid antigen tests. And so those are really a couple of the mandatory requirements. But key feature here is that because public health isn't supervising actively participating, the employer has to account for the legal risks, operational risks, human resources, risk, and costs and efficiencies associated with that, as well as some legal risks that are that are sort of bulleted in the lower part of the slide here. Privacy, we're talking about personal health information belonging to employees and essential visitors and civil exposure possibly, if in the unlikely circumstance, there is some form of incident. And so we might be looking at insurance possibly, or some form of if we go down the extremes, worker's compensation claim or something along those lines. Finally, what do you do if a person tests preliminary positive, because remember, we were talking about the screening test here, not the diagnostic test, I think the implications need to be abundantly clear to anybody who's submitting to the test, and you need a signature from that individual beforehand, as well as their contact info for contact tracing purposes, that they understand the implication of a preliminary positive. What does this mean? It means if a test preliminary positive, the employer has to tell the public health unit, at least in Ontario, and they have to contact them notify them and the public health unit knows. And if that person doesn't then go book their regular PCR brain tickler test within a set period of time, they're presumed to have COVID-19. That part needs to be clear. And so Neena, we've been working on a couple of different versions of this throughout the past couple of weeks. And with really good success,
Neena Gupta: great success and great takeaways. I mean, it's really interesting people want employees want the convenience of knowing that they're safe, and quite frankly, that they're not going to get COVID in the workplace and give it to their families and loved ones. So it's been almost liberating in some workplaces. And it's good seat. So there's a why, because it's not the brain tickler a lot. Although I'm telling it's removed sinus seriously, it's not a pleasant test. Because it's so easy to do. It really doesn't have the backlash that we've seen with respect to PCR testing, and obviously, with vaccinations, and also, you know, for those who are vaccine hesitant, they're worried about taking something into their body that is going to permanently alter their body. Obviously, taking a swab again, doesn't have that same psychological resistance. So it's been a great initiative. I've put some links into the chat to share that people can look up many chambers of Commerce's across the country are helping facilitate and encourage you to look at whether this is a good solution for your workplace, especially if you're running multiple crews. And the crews are not in pods and they're sort of working one with the other great solution. Next slide please. So, to share you and I have worked on closures and this is not a happy thing. And obviously our slides are Ontario specific but this is scary. Quite frankly, that public health can close down your business. Can you talk about your experience without naming names of course of some of the ones we've worked on?
Tushar Anandasagar: I'll do my level best Neena so So two plus cases equals you need to report that doesn't mean two plus employees five plus cases associated with your workplace within a 14 day period means at least in Toronto, Hamilton and the region appeal so far, and others are sort of indicating that they might be going in this direction as we move through this third wave, that your workplace can be closed down for a quote unquote, minimum of 10 days, 10 calendar days. And so think about what happens in 10 calendar days, that's a long time for a project when you have such a short building season. And, and so a couple of things on the on the class orders and what you might be seeing in terms of facts and circumstances on the ground in your jurisdiction. These powers are not new, they are not exclusive to these three jurisdictions that we named Toronto appeal and Hamilton. These exist under some form or another throughout the country, within emergency management or health protection and promotion legislation. The health units that you deal with day to day, they have substantial discretion to come in, assess what you're doing COVID 19 Workplace Health and Safety Plan and basically check in and say, you know, what is going on? Where are we going here? What are you doing to contain this, and they have the authority to either partially or fully clothed you this these authorities existed before the most recent sort of rounds of class orders. One thing that we get asked all the time, and that I was asked earlier last week, how do we appeal this? You know, what do we do to get back up and running online? Well, at least in our jurisdiction, the appeal timeframes are set up so that they are actually longer than the 10 day closure period. And so in some ways, there's a there's a hard stop limit to when the appeal hearing would even start to manage the closure and ensure that, you know, we can even have a discussion about reopening before the end of that period of time. And so what are we talking about here? key takeaway, you need to be proactive, you need to get on top of the regulations, the guidance and ensuring that it is adhered to by any parties at the workplace. And there needs to be a proactive approach to this, as opposed to a reactive blow the plume of dust off your safety plan approach saying, Here's my positive plan, I'm sorry, it's dusty. And it says, you know, March of 2020.
Neena Gupta: So one thing I wanted before people get too scared is public health officers are not in the business of closing it down. They don't want to do it. So if you can come to them with a unconcerned about the spread in the workplace, and here's how I want to deal with it, you may be able to negotiate a partial closure or a limited impact, which is far better than having your entire crew off limit. And so if you can work out a solution that addresses the joint concern that you and the public health office have about the spread of COVID 19, you're much more likely to get a good result, because as to Sharjah, said, you know, doing the appeal is not going to actually get you the result you want because it's going to take too long. And by that time the period has already expired. So being showing yourself to be professional and proactive and genuinely concerned about health and safety really makes a difference when you're negotiating with public health officers. Next slide, please. So, yeah, well, these are the key takeaways, risk management, you've heard it in the insurance and CCDC. To context you're now hearing it in the COVID-19 context, I we really believe in rapid antigen screening, it's really been something that we have seen great results with surprisingly small numbers of positive results. So people are using it as a tool, physical distancing, enhanced sanitation, engineering, administrative controls. And what I mean by administrative controls, is reminding your people, we all get sloppy after a time and I have a crew out there that's actually building me an extension. They were really good at the beginning. And now they've got to be managed to remember to do certain things, because we all get a little careful, you know, sort of comfortable with the risk in a way that we shouldn't over time. Next slide. So I'm recommended. One of the things that I'm going to suggest I'm a real believer in good masks. In the beginning of the pandemic, you could not find PPE even in the health care system, there was a huge shortage. Now you can get excellent medical grade certified, made in Canada masks, and I think you should be giving your workers medical grade masks, obviously rapid antigen testing. And we encourage you to think of a vaccine incentive encouragement policy. I know some of you who are listening they already have this three hour pay like in Saskatchewan and Manitoba and some other jurisdictions. But even if you don't have So I encourage you to institute it. And also if you're big enough and you think it's appropriate, have somebody local a local doctor or officer come in and talk to your population, about why vaccines are safe for that particular population. That's what I call the encouragement policy. Final slide. I think your last slide Oh, yes. Okay to share and I, we are both extroverts if you can't tell, and we love talking case law and T shirt Do you want to tell us about the what I call the nail Mar drywall nightmare?
Tushar Anandasagar: Absolutely, happy to and in case you thought we forgot No, we didn't. We're always we're always looking so the employees at a at a particular project. In this particular case, employees of a subcontractor, drywall subcontractor by the name of Nomar, they hired an exotic dancer during the province-wide stay at home order. Just in the last couple of weeks or so. And there were there were some images, videos and clips that popped up, both with respect to traditional media as well as social media of these individuals having a booze fueled party, that's the only way that I can describe it. One thing that was readily apparent for the purposes of our focus on COVID-19, and in 2021, is that there was no regard for the safe. Stay at home order. Nobody was wearing masks, there was no physical distancing, as you can imagine, and the video and the photographic evidence, quite clearly demonstrated that it was it was conclusive, let's say. Another concern from the standpoint of the employer, was the fact that the individuals that were filmed, engaging, and cording as such, if they were wearing Nomar drywall T shirts and the logo of the company, as well, as, you know, other key features were quite readily apparent in the in the videos and photographs that popped up online. Neena, that the employer came back with a zero tolerance approach. Maybe we can talk about that.
Neena Gupta: Well, you know, zero tolerance is funny, because I don't think our province enforces that. But I would query to what extent the values of not harassment, you know, let's not have booze filled parties, let's obey COVID-19 Let's stay within the social distancing areas, if that was really enforced, because when you see such a terrible breakdown of all sorts of policies, I cannot imagine a single one of our audience members has a policy saying it's okay to have exotic dancers at a construction site. And I can tell you that the exotic dancer was not wearing hardhat or boots, so she wasn't wearing the construction PPE, let alone the COVID-19 PPE. So the number of ways it's almost like an exam question to share. How many ways was the law violated at this point, but tongue in cheek? I mean, there is a reputational damage to when people do that. So I'm sure this was only one crew, I am hopeful that this was an aberration. And yet I know about this small contractor in Ontario, and I never did before and this is not a good reputation to have. So I think one of the takeaways is, well, we want to abide by COVID-19 requirements, because it's the right thing to do. And it's their legally required thing to do. We also have to be aware of the reputational damage if people aren't compliant, and social media is a swift judge, and it's far less interested in evidence in nuance than the judges of the Superior Court.
Tushar Anandasagar: That is an absolutely fantastic way to frame it. Neena, I think that brings us to the end of our slides and maybe we can pass it back. We will be I believe heading over soon to Oh Sorry, my mistake. We will distribute this afterwards. For those that aren't able to jot down the web addresses as quickly as we can type Neena's blisteringly fast. I've never seen someone type that quickly. But but we have very helpful COVID-19 Insight section on our website, as well as that we will make sure to distribute a an article that we prepared at the end q4 of 2020, when the first couple of vaccines were first announced. And we really focus on a couple of key cases in the vaccinate or mask series, let's call it from the unionized sector over the past decades, those cases dealt primarily with influenza and policies that that required an employee to either vaccinate or mask. We talked about how that might carry over to COVID-19. So we'll make sure that you have that and you're able to read it, you know, offline and on your own time. And and yeah, the Insights section. I mean, that is where Sahil mentioned it earlier, we prepared an article on the recent Sudbury decision, the court of appeal decision. You know, you can find a lot of building briefs and other helpful employment labor inequalities resources there first.
Neena Gupta: Thank you Tushar.
Ted Betts: Great, thank you to Tushar. You know, that was fantastic. A lot, I learned a lot myself. There's, there's, there's, it's a never ending battle trying to keep up. And as to sharp edges, we've got a great COVID website landing page for collecting current information laws, rules, articles, other resources. We're tracking this all over the place, our employment law and labor and equalities group deserve about a year's worth of holidays after the last year and a half of work. They've really been amazing. I work with them closely all the time. The different members, they've led up our essential workplaces Task Force, Craig Stehr, in Ottawa, and Tina Aswad. And in Montreal, and across the country, because it's been everybody can attest.
You know, to say it's a challenge been a challenging year, it's it's is an understatement. But it's been a challenge just to keep up with the changing of the laws. And especially knowing, you know, at the last minute, that there's been a change in the shutdown orders in Ontario, for example, and no needing to know immediately whether you have to send a notice out to employees not to show up to work the next day or not. We're tracking all of that we've got a big team of both in our employment and labor and equalities group, as well as the construction team, putting out articles as fast as we can to keep track of the changing pace of laws and regulations, and what's allowed and what's not. So thank you both. for that. We are now going to move into something new that we've we're introducing this year, because we have moved national with our construction law forum, and we are online. So we thought we'd take advantage of the ability to create breakout rooms, which will give everybody a chance we're hoping to raise questions that are, you know, maybe you didn't have a chance to get an answer in the chat. Maybe you just want to talk through some of the issues that we talked about today. Maybe there's some specific provincial law, laws or regulations you want to talk about that are not even related to COVID. But also, that might be related to COVID. It's a chance for everybody to get into a smaller group and ask a couple closer questions and meet some of our amazing big team across the country. We've got in each of the breakout rooms will have. We're breaking the rooms up by province. You're welcome to join any room, I think they may have been assigned. But we're going to have some of our team members from each of the different provinces across the country ready to answer questions. We've got a big team, we've got one of the biggest construction groups in the country, in fact, frankly, in the world, because we are one of the you know, the largest law firms in the country. And so we're there to help you with any of your questions. And also just to meet you, you know, normally we would be doing these in person, we'd have some coffee, we chat, maybe there's a question, you've been bugging, it's been bugging you, and you just want to ask somebody or you just want to make a connection with one of us, this is your chance to do it, at least digitally. So we're looking forward to starting that. Before we head into the breakout rooms just want to take a moment to thank everybody for taking an hour and a half out of their busy days. It's a delight to at least you know, know that many joined up if not actually to see you and meet with you in person. I wanted to thank Sahil and Cindy for putting together a really great program. I think they pick some very topical subject matters. And I think we've all learned a lot. And in particular Sahil, who's been writing furiously, going to court doing his work writing furiously on all these cases, as well as you know, as well as having a baby in the middle of all this. So, you know, we're all very busy. And we're very, very grateful for Cindy and hill, but also for Margaret Williams and Shannon Wodsworth, who helped to put the program together, did all the back, you know, behind the behind the scenes, technology and emails, the and invitations that make all this work and make our jobs a lot easier. So thank you to everyone. After the webinar is done, we will be sending out a survey. We do strongly encourage you and ask you to fill that out. We're all trying to make the best program give you the best content, subject matter and the most interesting format that we can. It's a new world Obviously, we're trying these breakout rooms for the first time in this format across the country. Give us your feedback, let us know what worked well, we'll keep doing more of that let us know what didn't really work so well. And we'll try to do less of that or improve on that. We Your feedback is really valuable. And we want to hear from you. So please complete that when you see that. And as I said earlier, the program today has been recorded. It will be on our website in a couple of days. The slides as well are available and I believe they have contact information for all of the present presenters today. But if you if you ever needed to reach out, you feel free to go to our website. In the construction and infrastructure section of the website. You'll see my name and I can connect you with whoever you need to speak to. So with that, we will move over into our breakout rooms. Thank you, everybody. See you in the fall.