Non-essential construction projects subject to new restrictions under the second provincial emergency

UPDATED January 18, 2021 – This version captures the further amendments that O. Reg 14/21 made to O. Reg 82/20 on January 15, 2021.

On January 12, 2021, in response to record COVID-19 case growth, the Ontario government declared a second provincial emergency under s. 7.0.1 (1) of the Emergency Management and Civil Protection Act, pursuant to O. Reg. 7/21 (Declaration of Emergency) (the "Provincial Emergency"). Premier Ford has announced that the state of emergency will last at least 28 days.

The public announcement includes additional measures to prevent the spread of COVID-19, including further restrictions on non-essential construction. The below summarizes the additional measures that came into effect as of 12:01am on January 14, 2021.

Prior to the Province declaring the Provincial Emergency, there were already restrictions in place in respect of construction projects and activities in Ontario pursuant to O. Reg. 82/20 (Rules for Areas in Stage 1) made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. To effect the newest restrictions detailed below, the Province amended O. Reg 82/20 with O. Reg. 10/21 (Rules for Areas in Stage 1) and O. Reg. 14/21 (Rules for Areas in Stage 1). Note that all orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 remain in effect until January 20, 2021. The Province may extend those orders for up to 30 days at a time.

Essential Construction

The Ontario government has provided an updated list of types of construction projects and work that will be deemed essential and will be allowed to continue operations under the new Provincial Emergency and related orders and regulations. All other construction work, activities, and services were ordered to cease at 12:01am on January 14, 2021. Note that the Province continues to permit necessary construction and maintenance activities to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.

The following construction activities or projects and related services, including land surveying and demolition services, may continue are those that:

1. are associated with the healthcare sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;
2. ensure safe and reliable operations of, or provide new capacity in,
   1. municipal infrastructure, or
   2. provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors;
3. 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;
4. support the operations of, and provide new capacity in schools, colleges, universities, and child care centres within the meaning of the Child Care and Early Years Act, 2014;
5. are required for:
   1. the maintenance and operations of petrochemical plants and refineries,
   2. significant industrial petrochemical projects where preliminary work has commenced before January 12, 2021,
   3. industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of personal protective equipment, medical devices such as ventilators, and other identified products directly related to combatting the COVID-19 pandemic;
6. would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
7. were commenced before January 12, 2021, and that would,
   1. provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
   2. provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services;
8. support the operations of broadband internet and cellular technologies and services;
9. are related to residential construction projects where,
   1. a building permit has been granted for single family, semi-detached and townhomes,
   2. the project is a condominium, mixed use or other residential building, or
   3. the project involves renovations to residential properties and construction work was started before January 12, 2021;
10. prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;
11. are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;
12. are funded in whole or in part by,
    1. the Crown in right of Canada or in right of Ontario,
    2. an agency of the Crown in right of Canada or in right of Ontario, or
    3. a municipality;
13. are
    1. intended to provide shelter or supports for vulnerable persons or affordable housing; and
    2. being funded in whole or in part by, or are being undertaken by:
       1. the Crown in right of Canada or in right of Ontario, or
       2. an agency of the Crown in right of Canada or in right of Ontario, or
       3. a municipality, or
       4. a service manager as defined in the Housing Services Act, 2011, or
       5. a registered charity within the meaning of the Income Tax Act (Canada), or
       6. a not-for-profit corporation.

In addition to the foregoing, note that there are certain activities that could include construction activity that were previously permitted under O. Reg 82/20 which were not further restricted by O. Reg 10/21. These include:

• Maintenance, repair and property management services that manage and maintain the safety, security, sanitation and operation of institutional, commercial, industrial and residential properties and buildings (item 35 of Schedule 2 of O. Reg 82/20).
• Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers (e.g. primary metal/steel, blow molding, component manufacturers, chemicals, etc. that feed the end-product manufacturer), regardless of whether those other manufacturers are inside or outside of Ontario, together with businesses that support and facilitate the movement of goods within integrated North American and global supply chains (item 39 of Schedule 2 of O. Reg 82/20).
• Land surveyors (item 44 of Schedule 2 of O. Reg 82/20)..
• Businesses that provide and ensure the domestic and global continuity of supply of resources, including, resource exploration, mining, forestry, aggregates, petroleum, petroleum by-products and chemicals (item 45 of Schedule 2 of O. Reg 82/20).
• Electricity generation, transmission, distribution and storage and natural gas distribution, transmission and storage (item 46 of Schedule 2 of O. Reg 82/20).

On-Site and Remote Work under the Stay-at-Home Order

The amended O. Reg 82/20 places an obligation on businesses to have employees work from home wherever possible, even if their business is deemed essential and allowed to open.

Any work that can be done remotely must be done remotely. Complying with this new requirement may mean moving more workers to work-from-home arrangement. In the construction sector, some workers may have some responsibilities requiring on-site presence and other responsibilities that can be done remotely. In these cases, those in charge of the project should consider a hybrid, partial work-from-home model.

Conclusion

We anticipate further information from the Province will be forthcoming. Please continue to visit our website for updates, and contact one of our experienced professionals for guidance on how these restrictions may impact your operations.

Gowling WLG has been at the forefront in guiding our clients through the COVID-19 pandemic, and our construction sector clients in particular. For more of our resources and updates on the legal impacts of the pandemic, please visit our COVID-19 resource page hub. Our legal professionals are regularly updating this hub with resources to ensure you are prepared for how coronavirus will impact your business. If you are concerned about COVID-19 or have any queries, please speak to your usual contact at Gowling WLG or email coronavirus@gowlingwlg.com.