Fall 2021 Construction Law Forum

Ted: Okay, I think we'll get going now. Welcome, everybody. My name is Ted Betts. I am the head of the Infrastructure and Construction group here at Gowling. Very pleased to see so many familiar names and everybody else who's been able to join us today. Before I begin I want to start with a quick Land Acknowledgement. Although we are virtual I do want to acknowledge that the land on which I live, work and play is the Traditional Territory of many Nations, including the Mississaugas of the Credit, the Anishnabeg, the Chippewa, the Haudenosaunee and the Wendat peoples and is now home to many diverse First Nations, Inuit and Métis peoples. I also acknowledge that Toronto, on which I reside right now, is covered by Treaty 13 with the Mississaugas of the Credit. For those of you who are new to our construction law forums, this is more of a mini conference than a webinar, designed to update in house counsel, project managers and other construction project participants about the current issues in construction law. We've been running these programs in the spring, in the fall, every year for about a decade now. Historically, these have been held in Toronto in person. Due to COVID, obviously, we have been forced to move online and aren't able to reach out and actually have conversations around the table. This silver lining of this, of course, is that we get to do this as a national event and we'll see that reflected in the diversity of national construction law topics that we have for you today. Another silver lining is we get to reach out to many more of you than we would normally do just in our offices in Toronto. Attendance at our event has always been very high but this year we had over 260 registrations, and at the moment 134 are actually in attendance today, which is a great percentage. Usually it's even a bit lower when we have it in person. Very happy to see the attendance. Very happy to see the interest in the events that we organize and, in particular, this construction law forum. I guess the price is just about right for everybody. We are always looking for feedback though. After the forum you will receive a survey and I would encourage you and be very grateful if you could fill that out. We try to design these programs so that they're very practical and useful to people who are working in the construction sector, dealing with legal issues on their desk, and not just theoretical legal changes or case law updates. We're trying to be very practical and serve the needs of the community. So let us know what you think. Let us know what you think about the format. Let us know if you have any other ideas, especially on topics. We're always open to new topics and trying to address current trends in the sector. If you are interested we also do run a lot of these programs, similar to this one, but tailored for specific clients in their shop with their teams. We can zero in on particular topics of concern if you wanted. If you are interested please reach out. You can also always register, if you haven't already, for our regular newsletter which we call 'Building Brief', which provides regular and very current construction law updates. We've got a really fantastic program. Before we get to that just want to go through, we are lawyers after all, and I want to put a little standard legal disclaimer on what you're about to hear. This is not legal advice. We are highlighting and giving updates on legal topics. For specifics you would need to consult directly with us on your particular issues and facts. It's impossible to cover all relevant details of every issue. These are high level, as I said, and your rights and remedies will depend on the unique facts of each situation. Your applicable contract or sub-contract and the nature of your project. For specific advice please contact your qualified legal counsel, hopefully us, before making any decisions or taking any action. This is of particular importance as every Province and Territory has its own legal regime and one of our topics today is looking at some of the differences between Ontario and Alberta construction laws, for example. As you know the situation is extremely fluid these days, in the construction sector, and it's changing on a daily basis. As things evolve your best course of action could also evolve. Please follow up to date and reliable sources for your information as you make your decisions with your construction projects and companies. I'm going to pass the microphone over to my partner, Sahil Shoor, to go through the program but, as I said, I think we've got a really interesting and diverse and exciting program. As we get going I'd ask if everybody, if they haven't already, mute their microphones and block their videos. We will be focusing on the speakers but there can be sometimes some feedback. As we go through the program we'll also ask if you have any questions feel free to ask them in the chat function at the bottom, and as we go through Sahil will be reading those and channel the questions to the speakers, as we have time. With that I will pass it over to Sahil. Sahil.

Sahil: Thank you, Ted, and good afternoon everyone. As Ted mentioned I'm Sahil Shoor. I'm a partner based out of the Waterloo Region office but I have a national construction law practice, both solicitor and litigation and dispute resolution. I'm going to give you an update as to what has happened in the courts and the decisions that have been coming out by the courts in the construction sector. Then I'm going to pass it over to my colleagues in British Columbia, Maya and Jeremy Sapers, to talk about how we could advance construction projects on Indigenous lands. We're then going to go to Calgary, to my partner, Stephen, to speak about prompt payment and adjudication regime that has been introduced in Alberta and Ted will provide us with an overview as to what has happened and has already happened in Ontario. We're going to come back to Ontario and let you know about what is happening in the construction labour and employment law world as the companies and the construction is being navigated through the fourth wave and as we come out of it. Then we're going to go to Montreal to my colleague, Joey, who's going to speak to you about RBQ licencing processes and then we're going to close out and invite you to join us to a breakout room. A breakout room is something that a question was asked at the time of registration and we are breaking out the rooms as a Province. So the folks who are joining us from British Columbia will be put into British Columbia breakout room and Ontario, Alberta, would have their own. With that, I'm going to start with the case law update. So if we can get the first slide, please.

So one of the first case that I'm going to be speaking to you about is a recent case by an Ontario Superior Court Justice dealing with an issue of third party payment certificates. These are the certificates and provisions that we see in construction contracts, quite a number of times, and sometimes specific reference are made to these provisions in the supplementary conditions. In this case of Pentad Construction and numbered company, the court found that the third party payment certificates are binding if they are agreed to absent fraud, bad faith or willful disregard of duty. So what does that mean? That if an authorized engineer did not certify the subcontractor claims, and as a consequence of opposing views somebody puts a lien on the property and if the contracts provide a third party certificate is binding, that is the decision which would be used in the course of the project. Moving onto the next slide, please.

In this particular case the court held that the two parties had agreed, as construction contract was negotiated, agreed to between them that a payment certification provision, ... payment certification provision, number one, and as a result they were bound by decision of that authorized engineer. The law holds that where payments are dependent on certification then determination of the payment certifier is a final and binding, absent fraud or bad faith or a knowing and willful disregard view. Next slide, please.

What is the main takeaway? Contractual interpretation continues to be grounded in the text and read in its entirety when taken into account by analysis which are undertaken by the court. Courts presume that the parties have meant to be bound by their bargain and so, what parties agree to is key in the construction contract and the decisions of the third party payment certifier, if provided by the contract, is binding. So as a construction company, or as a role that you play in the construction world, you must be attentive to the contractual language that you use and the language that is being used, whether or not the same is transparent, and whether or not there's a clear process for certifier decisions or room to be challenged and under what ... Next slide, please.

There are two recent cases, again from the Superior Court, that has provided feedback on the notice requirements under the contract which the parties would have agreed to. The courts are sending the message, again, that if you have notice provisions in your contract, you rely on them otherwise you have an issue if you do not comply with the terms of the contract. A lot of the times we see notice requirement whereby certain things have to be taken into account within 3, 5, 10 or X number of days. Parties don't usually follow the notice provisions and this is where we get a message from the court for those parties in the construction pyramid to really use the notice provisions which are in the contract to provide the notice to the other side. Next slide, please.

So one of the first cases is Tower Restoration versus AG of Canada. Again, a 2021 decision and in this case AG is the owner of the project who rejected a contractor's claim for additional post-completion payment. AG advised the contractor that if it disagreed with the rejection of the claim it could exercise its option under dispute resolution provision of the contract, which required the contractor to submit a notice of dispute to the owner within 15 days of receiving its rejection of the claim. In this case the contractor took no action until almost 2 years later. Next slide, please. The court rejected the contractor's claim and found that the terms of the contract regarding notice were crystal clear and further noted the policy rationale behind binding notice provisions under the contract. As was the case in this case, that the defending party ought to be allowed to consider options in response to a prospective claim and take corrective action. Next slide, please.

Again, another recent case involving the same owner, even though different projects. Elite Construction and AG. In this case the contractor brings an action against the owner seeking additional compensation under the contract in relation to delays and extras. Something that we see all the time in the construction dispute resolution where there's an extension claim as a result of schedule delays and as a result of extras being added to the project. The contract contained two notice provisions that the contractor is to give the owner notice of intention of the claim, for loss or damage, within 10 days of the alleged cause of same. Secondly, the contractor is to submit a notice of dispute within 15 days. The contractor in this case did not provide notice of its claims at all. Next slide, please. The owner moved for a summary judgment on the basis of the contractor failed to comply with the notice provision. The court agreed with Canada and as per it's reasoning in Tower Restoration, summary judgment was granted and the contractor was dismissed on the summary judgment motion. Again, a key takeaway, if you a agree to notice provisions in the contract and if the parties are not following the notice provision, you can use the two cases that I've given you but the bigger takeaway message is, follow the notice provisions in the construction contract, the ones which you have agreed to with the other side. Next slide, please.

This is the case as a result of one of the first cases where, a case in Ontario, where transition provisions have been looked at as it comes to the prime contract between the owner and the contractor. As a result of the most recent changes to the Construction Act, substantial changes in July 2018, and adjudication and prompt payment in October 2019, the timelines for liening the properties, provided a lien is applicable to the associated property has been increased, and in this case, next slide, please, and in this case, the Crosslinx project here in Toronto, one of the subcontractors registered two liens which were 56 days after the date of last supply. The liens were registered too late if the 45 day deadline under the old legislation applied, but were properly preserved if the new 60 day deadline under the new Construction Act. So there was a delay of approximately 11 days on holdback. Next slide, please. In this case the court found that the old Act applied and the deadline to preserve the lien was 45 days and not 60 days. The court ruled that the determinative date is not the date of the subcontract but the date of the prime contract for improvement. Next slide, please. So one of the key takeaway is that attention should be given to the date of the prime contract, or to the other key dates as set out in section 87.3 of the Ontario Construction Act, when determining when the date of rights expire. Next slide, please.

In this case the court looked at the issue of strict lien timelines in the Ontario Construction Act and a lot of the time, at least, promises to pay are made by the contractor to the subcontractor and vice versa by order to the contractor. The courts have sent a recent message that promise to pay does not extend your strict timelines under the Ontario Construction Act. In this case the Divisional Court upheld the Motions Court decision to discharge a substantial portion of the lien for being registered out of time. Next slide, please. I've given you the Motions Court level decision and on appeal the Divisional Court level decision but the bottom line was the Divisional Court upheld the lower court ruling and provided reasons why it was unlikely that promises to pay could defeat the deadlines in the Construction Act, those have strict deadlines, however, the court did not go so far as to overturn or diminish the two previous Ontario cases where promissory estoppel had operated to prevent owners from advancing lien expiration defenses. So if you are the one receiving the promise that you will get paid, out of an abundance of caution, use your lien rights that you have under the Ontario Construction Act. Next slide, please.

One of the last cases that I'm going to speak to you about is what happens in the world when there are claims for according to who has a priority. In this particular case by the Divisional Court, one of the sections from the Construction Act that has been looked at, section 78(3), when mortgages have priority over liens in Ontario and whether or not those priorities include accrued interest charges and fees. This typically arises in distress projects and you know those projects that are moved into insolvency. That's where typically the priority disputes arise. Next slide, please. In this case the Appeal Court upheld that the mortgage priority includes the accrued fees, charges and interest. In this particular case those amounts were substantial, including the receiver's fees in the amount of approximately $463,000.00. Arrears in mortgage in the amount for $429,000.00. Other charges in the amount of $108,000.00. Priority for the mortgage meant that those monies were not available to the claimant. So depending on the folks that we have on this webinar with us this afternoon, these can be, again, very complex issues and something to be very mindful of if you're the lender, because I know from the registration that we have a number of lenders who do construction financing. So mortgage priority are a technical area of the Act with serious consequences in the event of a project insolvency. Next slide, please. So I'm going to stop there and pass it over to my colleagues in British Columbia, Maya and Jeremy.

Maya: Thank you so much, Sahil, and hello, everybody. Thanks for joining us today. Jeremy and I practice construction law out here in Vancouver, on the Traditional Territories of the Musqueam, Tsleil-Waututh and Squamish Nations, and we're very pleased to come to you and talk about Indigenous projects on Indigenous lands today. So we're going to start with a little bit of context, and then some key thoughts for starting up the project and developing it, and then managing it for project success. Then we're going to explore some considerations for what if something goes wrong during the project development and some tips for looking ahead. Next slide, please, and over to you Jeremy.

Jeremy: Thanks, Maya, and good morning, good afternoon, everyone. Like Maya said, I'm Jeremy Sapers from the Vancouver office. Up on the screen right now, what we're showing is a snapshot of some projects going on right now across the country, and the main takeaway here is there's construction and infrastructure projects on Indigenous lands underway. Coast to coast to coast and there's lots of funding available for these projects, which we're going to get into a little bit later on in our presentation. Next slide, please. This information up on the screen right now is geared a little more towards Indigenous communities but should also be front of mind for contractors as well and the subject of this slide is considerations for initial planning and scoping projects on Indigenous lands. The key message is early on talk with community members and rights holders to identify a few things. Determine specific community needs and consider how much funding is required and where the funding is going to come from. Then match those needs and funding with the project scope, considering factors like the age of existing infrastructure, community size and population and demographics. Also, important to think about opportunities to employ community members and deliver vocational training and upgrading and opportunities to involve indigenous businesses or economic development agencies. Then on the right side of the slide here there's some key considerations surrounding project location. Maya?

Maya: Thanks for that, Jeremy. So every Indigenous community is going to be unique and that even applies with respect to what types of laws, what types of interest and lands are available on that piece of Reserve Land or those Reserve Lands for that community. So when I say that, sometimes for some Nations the Indian Act land provisions still apply. Others have adopted land codes pursuant to the First Nations Land Measurement Act and thereby taking quite a bit of control over granting interests, licences, leases and other permits to their lands and really become a very strong municipal type of an entity where they have their development laws, and construction laws and they have just different types of permits for each stage of development. So it's important to get to know the specific community where a project is being proposed, or where a tender is out, and consider what applies there. Looking at zoning. Some Nations even have zoning laws and you want to make sure that the project is in accordance with the zoning laws or does it need a variance? Considering things such as existing interests. I've got CP holder there and that's really a certificate of possession, where some Nations have it, some don't. So it's really understanding specifics of the Nation. We even have specific environmental features that need to be taken into account. Here in the Lower Mainland in British Columbia we've got a look with the Trans Mountain Expansion Project. That crosses a lot of Indian Reserve lands in the Lower Mainland and a species at risk has become a bit of a concern, a challenge in the development of the project. In particular because of a small Oregon Forestsnail that is found in a lot of the Reserve lands. So a lot of attention should be put to that before advancing project. Next slide, please and over to you, Jeremy.

Jeremy: Thanks, Maya. So we were just talking about the importance of aligning community needs and demographics with project scope and on this slide we're expanding a little bit on project funding. In the early stages it's important to keep in mind that access funding, there's going to be qualification criteria and application and approval processes which can take several months. When the money is approved, and it's coming through, the funds are not going to be blank cheques. Once approved the money's going to come along with often complex funding agreements and strings attached to the funds. Just a few examples of those strings that are attached. Funding is often going to be tied to project start and completion dates and some arrangements will provide for up front lump sum funding to the First Nation communities. Others will actually require the community to incur the expense, first, and then apply for reimbursement after. So it may be necessary to ensure that there's a pool of funds available to keep the project going and then expect that reimbursement from the funding entity afterwards. Often times there's also fairness and transparency obligations. This is for things like picking subcontractors, sourcing materials, record keeping and accounting. Next slide, please. This slide builds out on those procurement and tendering obligations and we're seeing that these are some of the most common conditions that are found in the funding agreements. These procurement concepts might sound familiar to many of you. A typical clause is going to require the community to award contracts in a way that is fair, transparent, competitive and consistent with value for money principles. So in practice what this usually is going to mean is no sole sourcing and running competitive competitions for subcontracts and for sourcing suppliers and material. The funding agreements might also provide that the funding entity has the right to review procurement processes and practices and sometimes this right to review can extend years after project completion. This brings us to a really, really important point to keep in mind. If it's determined by the funding entity that the Nation awarded contracts in a non-competitive way, so this might mean awarding work to a less qualified, more expensive or non-arms length entity, the funding can be revoked. This situation can arise before the project, during the project or after project completion. Next slide, please.

Maya: Thanks, Jeremy and it's really important considerations to bear in mind. Another thing for managing the project. Once a contract's been awarded and work is starting, it's really important for Indigenous Nations to be working with a project manager. We've seen the challenges arising when that's not in place and the benefits of when a project manager has been retained. That project manager would then have a role in tracking the budget, making sure the schedule is moving forward as it should be, evaluating and certifying requests for payments, looking at change order requests. We've seen some communities struggle with so many change order requests, and then the ultimate cost increase significantly from what they initially thought, or what they had funding for. Then ensuring that there is compliance with those applicable Indigenous laws as well as the critical Federal ones. There is ongoing engagement with be it counsel, or the lands department, or if there's a committee and then regular communications to manage expectations. Next slide, please.

Jeremy: These next few slides are going to discuss dispute avoidance and lien rights on Reserve Lands or really it's about the absence of lien rights on Reserve Lands. The key takeaway on this slide on the screen now is that Reserve Lands are going to be subject to the Federal Indian Act. These three provisions that you see on the screen, sections 88, 29 and 89(1) of the Indian Act, taken together effectively they mean that Reserve Lands cannot be liened. Next slide, please. The reason for that is that lien legislation is Provincial and we just saw that the Federal Indian Act says no liens. We won't get into this in detail but there's a constitutional principle that says if a Provincial law is inconsistent with a Federal law, the Federal law is going to win that fight. So this means, generally, Reserve Lands, no liens. But other rights and remedies in Provincial lien legislation might still be available. For example, looking at the BC Builders Lien Act, the holdback obligations from the Act are not going to apply to projects on Reserve Land but the statutory trusts for payments moving down the contractual chain, those trusts generally will still apply to projects on Reserve. Now an important qualifier here, not necessarily the case in all Provinces because lien legislation is Provincial, so if you do have lien questions reach out to a professional in your jurisdiction. Also good plug for our next presenters who are going over the differences in lien legislation in Alberta and Ontario. Next slide, please. Back a couple. I think we skipped one. Perfect. Thank you. So no liens. What do you do? Hope for the best but prepare for less. During negotiation think about what needs to go into your construction contract. Consider whether your standard form contracts need to be modified. In particular, look at the dispute resolution clauses that reflect the specific parties and the specific project dynamic. Also consider whether your construction contract can fill in any of those statutory gaps from the lien legislation that we just talked about. For example, you can add holdback obligations into the contract, even if there's no statutory obligation from your Province's lien legislation. Also it's important to approach and run the project as a partner with the community. So oftentimes this is going to be an investing time in the relationship, communicating early and communicating often with Chief in Council, any project manager and the Nation's land department and lastly, and this might be the most important one, be flexible to the extent that you can and understand that some aspects cannot be de-risked completely. Next slide, please.

Maya: Thanks for that, Jeremy. So to wrap up we thought let's just take a look ahead. First of all there are significant amounts of funding available for capital projects on Indigenous Reserve Lands. Without going into expansive details here are some examples. There's the Indigenous Community Infrastructure Fund where there's about 4 and a half billion over 4 years. There's a First Nations Infrastructure fund. These are both Federally funded. Next slide, please. There's the Capital Facilities and Maintenance Program. There we've got a billion per year, also Federally funded. Then there's other sources, for example, the Canada Infrastructure Bank has a mandate target, at least a billion in investment for Indigenous infrastructure. Then Indigenous communities themselves have increasingly available funds to put to the projects, including through IBAs, or impact benefit agreements, settlement agreements, where in the past Canada used to say, the money had to go into trust but now it's for community purpose. Then even Indigenous economic development entities are providing dividends and distributions to their Nations and thereby providing funds for the projects. Next slide, please. So for Indigenous governments. Again, as we've said, identify community needs and the community vision and match the two. So if you have a community, here in BC we have smaller Indigenous communities, if you're developing some type of facility match it to the size of your community or the foreseeable future. Similarly, much larger communities in other Provinces across Canada, including Ontario, look to match. Consider what the land use goals are. Some Nations have developed land use plans 10, 15 years ago. Is it time to revisit those and then develop projects based on those? Secure funding up front. We just run into so many challenges with projects on Indigenous lands where the funding wasn't secured or the project blew up and became a very big project. So make sure you've got that funding. Retain that project manager, as we said, and communicate regularly with the communities so they know what's going on and to manage their expectations. Next slide, please. For developers, develop those relationships. That requires early and ongoing engagement and transparency with the community. You may even want to request cultural training. Some communities already have training programs that they've developed on big resource projects and that might be appropriate here. Ensure your communications are with the right parties. It's going to differ from community to community but some may want you to talk to Chief in Council. Some may want lands department directives. Consider partnerships with Indigenous development entities but bear in mind the risks that Jeremy mentioned about the tendering in contracts. Carry out your due diligence. Understand the funding limitations and, again, as Jeremy said, be flexible in project development. Next slide, please. So in summary Indigenous Nations are increasingly becoming a powerhouse in project development. There's a lot of potential. There's a lot of funding and there's an important role to fill in addressing community needs and goals. Relationships are really the key and those can translate into long term benefits. We see increasingly different options for contracts for Indigenous businesses and if you have a partnership with an Indigenous community, or an Indigenous economic development entity, you may have access to more projects. We've seen that as a outcome of many of the, for example, the pipeline projects being built across Canada. Next slide, please. So that takes us over to the next presentation. Thanks, everybody.

Stephen: Thanks very much. My name is Steve Carter-Edwards. I'm a partner out of the Calgary office. I practice in the area of construction law, both on the solicitor and litigation side of things, and here today I'm presenting along with Ted who will comment as we need him to on the provisions of the Ontario Construction Act. What we are doing in a very limited time though is just going to highlight some of the notable differences that seem to be arising out of the Alberta provisions and, as well, point out that while the Act, as you see on the slide, is still awaiting proclamation. Likely not even until summer of next year. We're anticipating that with the ongoing consultations that are carrying on right now with the regulations, that they will be out in enough time early next year, that we can then provide clients with advice on how to adjust their various construction forms and contracts to deal with the new Prompt Payment And Construction Lien Act.

Ted: Just to highlight the importance of this, even though we're focused on Ontario and Alberta, Ontario, as everybody knows, passed prompt payment in adjudication rules. We're doing a bit of catch up in Ontario with the rest of the world. Looks like Alberta is going to be next and several other Provinces have already passed legislation, including prompt payment and adjudication, and many more Provinces, including the Federal Government are considering it. While this is specific to two Provinces legislation, the rules around prompt payment and adjudication are coming across the country in the near future.

Stephen: So if we can go to the next slide, please. I wanted to highlight one of the principal noticeable differences that we've seen. In Ontario the Construction Act binds the Crown and, in fact one, of the very few projects that don't fall under the Act are nuclear facility projects. Whereas on the other hand, in Alberta, the Crown has basically said that the Act and adjudication is not going to apply to any Provincial Crown projects, and it's not going to apply to agreements where the financing and the undertaking of the improvement is Crown entity. So it's a bit of an unfortunate development because, as we see, post-COVID economic recovery is really going to depend on large amounts of government infrastructure spending and it looks like, in Alberta at least, the disputes that might arise under these new projects are still going to be dealt with under the existing Public Works Act, as well as the existing dispute resolution process that the Crown has been using in Alberta for a number of years, but which has proven to be fairly frustrating for most of the participants in a dispute resolution process. I guess it remains to be seen, of course, if this is revised before the adjudication and the Act is finalized but this is where Alberta stands right at this time. Next slide, please. So at least another difference is nominating authorities. Right now in Ontario there's only one nominating authority, ODACC, whereas in Alberta right now, there's at least two entities that are seeking to be a nominating authority and in fact, until the Minister designates one, the Minister itself will be the nominating authority. So this again is going to create some differences between Alberta and Ontario, in that you might have a project where there might be two concurrent adjudications going on, and they might have different nominating authorities dealing with each adjudication. So is this going to lead to people shopping between adjudicators or shopping between nominating authorities. It's also going to pose potential of having way too many adjudicators trained in Alberta for the amount of adjudication that might ultimately take place, as we'll see in the next slide. Thank you. So in Ontario, again we have a contrast, that the parties to a contract can refer a stipulated dispute to adjudication, even when it's the subject of a court action. Whereas in Alberta we've taken the opposite position. So if the matter's already subject to the court action, it won't be adjudicated. If the adjudication is commenced on the same date as the court action, the adjudication is discontinued in favour of the court action. So this is going to potentially lead to the situation where parties can avoid the whole prospect of dealing with disputes by the adjudication process by getting involved in court actions, which really is just going to maintain sort of the status quo of what we have now. Next slide, please. So another difference between them is the control of the adjudication process itself. In Ontario, even though they can't specify who the adjudicator will be in the contract or subcontract, once the dispute arises then they can agree on who the adjudicator will be and if there are different adjudications, in other words it might be issues between the owner and the contractor and a different issue between the contractor and its subcontractor, these adjudications can then be consolidated. Alberta, of course as we've seen so far, has taken a contrary position to that as well. Currently there's no present ability in the Act for parties to agree on an adjudicator and nor is there is any ability, as it's currently standing, to consolidate adjudications. So, again, we seem to be taking a very contrary position to what has happened in Ontario. I think we've managed to keep things on track and on time and we'll turn you back over to Ontario and talk about some labour and employment law. Thank you.

Tushar: Thank you very much. Good morning, good afternoon, depending on where you are joining us from. My name is Tushar Anandasagar. I'm joining you from Kitchener Waterloo Region. I'm actually based in Cambridge, Ontario. I am joined today by my wonderful colleague, Hina. I'm actually going to allow Hina to say a couple of quick words and introduce herself. Hina, please take it away.

Hina: Hi, everyone. Thanks so much for joining us today. So Tushar and I today are going to talk about sort of an update on what's happening with COVID in the employment context. I'll go through our agenda today. We have not a lot of time with you today, but just as sort of a disclaimer, Tushar and I are both speaking to you from Ontario, so most of our focus will be on Ontario based laws and update, but we will pepper in some of the other figures that we're hearing around the country as well. If you have any specific situations, especially for a Province like Quebec, make sure you seek specific legal advice for that particular instance. What we plan to cover today is we're just going to give you a bit of status update about vaccination policies and whether you should or shouldn't mandate them now. We covered a little bit about this in our spring forum so we're just giving a bit of an update there. Then we'll be sharing some policies and comments that have been coming through from the Human Rights Commission across the Province. This is fairly new with the Human Rights Commission weighing in on where human rights are when it comes to vaccinations and mandates. Then we will talk a little bit about mandatory rapid testing, and how that's being imposed across Ontario, and then we'll also cover a bit of the health and safety at a specific site and how to navigate the fourth wave there.

Tushar: Thank you so much, Hina. Maybe I can provide a little bit of a status update. For those of you who joined us in the spring for the spring forum, we talked at a high level about some of the risks and associated legal considerations related to the implementation of a mandatory COVID-19 vaccination policy. I will say that despite the cars on the highway, all collectively doing 120 at the same time, from a legal standpoint with respect to employer/employee risk, not much has changed overall outside of a handful of sectors. But there certainly seems to be more indication from our policy makers, our regulators, not so much from the courts and arbitrators, not yet, but certainly some positive indications as to the ways in which an employer may be able to justify these types of policies. So maybe just a couple of brief comments on the types of policies. What are we seeing? We are seeing vaccination or tests. So vaccination or termination. Vaccination or suspension. Vaccination or some alternative. It could be a form of work from home. These are a variety of different types of policies that we're seeing, depending on the circumstances. What is the authority for a policy? We went through this in the spring and I would urge you to check on those comments. They're still valid and relevant today because they, generally speaking, do apply. Reopening legislation is going to be the key one in your particular sector. Speaking personally about what's going on in Ontario, certain designated workspaces have been classified as high risk. I think it's silly to classify a workplace as low risk during a pandemic so we'll talk about the other workplaces as regular risk. How does a regular risk workplace justify a COVID-19 mandatory vaccination policy? Well, we look to occupational health and safety legislation. In that sense not much has changed since we last discussed this topic. The general duties apply and these apply broadly across the board in each and every Province. So how do you justify? I'm required by law to take every precaution reasonable in the circumstances to keep my workplace safe and this is a reasonable precaution, that's certainly the argument. I've put in a TBD on this slide because health protection legislation is a bit of a wild card. We talk about health protection legislation and the ways in which a particular health unit might apply in health protection legislation. Is it theoretically possible that a local health unit, let's say Kitchener Waterloo Health, comes in here and says, "You required to implement a mandatory COVID-19 vaccination policy." I think the answer is, yes, but again it's TBD because it could be in response to an outbreak. It could be a response to some sort of recommendation. Next slide, please.

We talked a little bit about this in the spring but I'll circle back just because it is a little bit more relevant and we do have a little bit more guidance at this point in time. What are the key risks that we're talking about here? Now Hina's definitely going to share some information on the human rights side. I know that is one of the key talking points, if you will, with respect to invasions of right to privacy or individual sovereignty, most certainly get into that but I think the real key risks for non-union sector employers fall more so on the employment law side. If we're talking about a unilateral change to the terms of an employee's employment relationship. A 20 year employee, when they joined your organization, they weren't thinking about COVID-19. It was not possible and so it's possible, at least in theory, that we could see a legal decision that says a unilateral change of this kind that is rejected by the employee, could be constructive dismissal. Again, we're still waiting. We're watching eagerly for this first couple of cases to come out and the vaccination mandates, at least in Ontario and in some other parts of the country, really started to crystalize and take effect as of the start of September. So we're still in those early days and we're watching for both the union cases as well as the non-union cases. I've put in a bullet point talking about adverse reactions, workers compensation issues that could come up, sick leave claims, absenteeism issues, possible tort exposure. Again, we spoke about these at length during our spring update, and so I would urge you to revisit that as you are able to. Finally here, what happens if you don't implement? What happens if you're in a regular risk setting and you don't implement a mandatory vaccination policy? Unless there's some statutory requirement that says, "Thou shalt do X", there is no statutory risk, at least, associated with doing this. Where are the risks and liabilities here? We could be talking about potential shutdown orders. We could be talking about public health involvement in the event of an outbreak. We could be talking about a form of ongoing regulatory compliance if there's a statutory change. So really something to track as the fourth wave continues to bear on. Hina, maybe I can turn over to you to give us a bit of as status update on vaccine passports. There's been a lot on this over the course of the past few months.

Hina: Yeah, there has. At this point many Provinces have introduced some form of a vaccine passport system. This basically restricts unvaccinated persons from entering certain non-essential businesses, events and activities. So this potentially patchwork across Canada has different rules everywhere. A bunch of Provinces have started saying that you cannot use a COVID-19 test instead of the Province's passport, so that's something we're seeing developing, and along with that legal challenges have started to come. For example, in Ontario the Justice Center for Constitutional Freedoms has already filed a constitutional challenge to Ontario's vaccine passport system. The Federal Government has also introduced their COVID-19 proof of vaccination. So this is more for travel purposes but each Province, the ideal is that it's going to be a consistent passport but each Province will be responsible for developing it and introducing it to their citizens. Lots happening but not so much for the employment sector. More so for services and travel.

Tushar: We'll go over to the next slide, please. Hina, that's very interesting. Last scan that I looked, on the vaccine passport side, I think this is the current list of Provinces that have actually either implemented a passport or provided some form of guidance; BC, Ontario, Alberta, Manitoba, Saskatchewan, Quebec, Nova Scotia, New Brunswick, Newfoundland/Labrador, Prince Edward Island and the Yukon Territories. We're going to move quickly through human rights and personal rights but, again, back to Ted's earlier comments about the rate of change regarding COVID-19, the vaccine passport is right on the leading edge there. Hina, maybe you can walk us through some commentary on human rights versus personal rights.

Hina: For sure. So I'm just going to talk about this very briefly, because I could go on forever, but there's been various human rights commissions that have, across Canada, that have released statements or comments about COVID-19 vaccination. In Ontario, our Ontario Human Rights Commission, they published a policy statement on September 22 that essentially takes the position that mandating and requiring proof of vaccination is okay to protect people, as long as there are safeguards put in place. So safeguards to ensure those that cannot be vaccinated can be accommodated for human rights related reasons. That's generally what we've been seeing from other Human Rights Commissions across the board as well. For example, Alberta, New Brunswick, they've all been saying similar things. Next slide, please. They're basically saying that a preference or a singular belief would not necessarily fall under human rights legislation, for the most part. It has to be under one of the protected grounds and this would be most likely disability, or a creed, or religion, those are the three that are most applicable right now in the COVID situation. Next slide, please.

Tushar: Hina, maybe I can jump in here because we did cover this briefly during our spring forum, so just a quick status update on a significant case involving a construction company. LIUNA Local 183 versus EllisDon construction is an interesting case about a mandatory rapid antigen testing policy. This was a union sector case and I've put up a couple of comments on the slide here which we'll certainly ensure that these are distributed after the presentation is done. But I just wanted to add to Hina's comments about personal rights, human rights. These allegations of breaches of privacy that we're looking at pop up across the country. The arbitrator in this particular case specifically considered privacy in the use of a rapid antigen screening test. I'd like to hone in one comment at the bottom of the slide here. When one weighs the intrusiveness of the rapid test against the objective of the policy, preventing the spread of COVID-19, the policy is a reasonable one and so the arbitrator said, "Yeah, it is an invasion of privacy but it is a reasonable invasion of privacy for purposes of mandatory rapid antigen testing policies." I wanted to circle back here, and I think it's helpful, Hina, to sort of tease this out a little bit because for constructors that may not want to go as far as electively implementing a mandatory vaccination policy, this could be a viable alternative and you're still seen to be taking action by individuals who are coming onsite you're still hopefully, at least on a preliminary basis, capturing preliminary positives via your rapid antigen screening tests. This particular decision, in a union context, provides some justification for actually saying to individuals who are walking onto certain job sites, "Hey. You want to walk on, you're submitting to a rapid antigen screening test. You gotta wait here for 15 minutes. It's part of the deal." It can be positioned in the same way as requiring to wear a hardhat and safety shoes and appropriate eye protection. It is something that forms part of a broader overarching health and safety mandate. On the subject of health and safety, next slide, please.

We're just going to do a quick follow up here on site health and safety. Hina and I in the spring, we talked about COVID-19 safety plans. We will say this, Hina, please feel free to chime in here as well, to the best of my knowledge the Ministry of Labour has hired, at least in Ontario, hundreds of new enforcement officials who are not going site to site, they can attend on your premises without a warrant, they can stop work from happening, and one of the first things that they're going to ask to see is your up to date COVID-19 workplace safety plan. So we went through this in the spring, not going to be labour it. It is something that I urge you to revisit and constantly update based on the current guidance that applies in your jurisdiction. Be mindful as well of reporting obligations. There are certain reporting obligations in the event of a COVID positive case that might be triggered under your occupational health and safety regulations, whether you're operating in BC, Ontario, Quebec, Alberta, you name it. So these are also subject of, let's call it a pinch point, for purposes of employers seeking to maximize site health and safety. We're a year and a half into this and because of the expansion of enforcement, regulators are willing to educate to a certain extent, but they are a lot less accommodating than they were at the start of the pandemic. Maybe, Hina, if we can wrap up with just a couple of comments. Have you encountered site safety plans? Have you audited site safety plans for any of our clients?

Hina: Yes. What's really important is that our clients actually, we encourage them to drills with their plans. It's not good enough to wait until you have a positive case and then figure out what to do. You need to know what to do ahead of time. Where's your designated isolation area? Which parts of the company need to be shutdown? What are your reporting obligations? All of these things you need to figure out ahead of time so that when the crisis happens you're prepared.

Tushar: Thank you so much and next slide, please. I believe that will bring us to the end of our part. We've put up some useful resources up here. We've issued a number of communications on our insight section of our website so I'd urge you to follow us on our insights for purposes of our employment, labour and equalities section, whether they're related to construction or not. If it's happening on the ground you'll probably here it there first.

Hina: Thanks.

Tushar: Thanks, everyone.

Joey: Alright, I guess this is where I chime in. Hello, everyone. Welcome to the Quebec component of the presentation. We'll be talking about a recent decision on Habitations Trigone and the overall increased scrutiny over the RBQs licencing processes. Next slide, please. Just as a background, RBQs divisions about ... Quebec and whenever you want to conduct construction work in Quebec you need to have a licence. This is a general rule. Spoiler alert. It comes down to Habitations Trigone losing all of its licences. Who is Habitations Trigone? It is a group, in reality it's just a trademark, that a group has been using to build 22,000 housing units since its creations, according to the group's website. It works in a sector of residential construction and because it's only a trademark the Building Act doesn't allow this trademark to hold a licence. So you would need to have a legal person or a partnership for a licence to be delivered. How they would work is that they would have corporate entities created for each construction project that they would start. So each housing unit, a new corporate entity, a new licence. This is what's analyzing the decision. We have 7 minutes so we're cutting some of the elements. It's a 134 page decision so we'll quickly pass onto the next slide. Just as a background, the decision was rendered in September 2021, and it appears that RBQ decided to investigate a public interest TV show broadcasted, called La Facture, which looked into some of the questionable practices of Habitations Trigone. Next slide, please. So the key component in the decision is confusion. It stems from the fact that the RBQ claims that many customers who are buying the units based on the well known name of the company, which is Habitations Trigone. It looks like a reliable company. It looks like a solvent company when in fact they were buying from a separate entity that did not have the same financial capacity in case of problems, if there were damages in the construction and that those entities would cease to exist a few years after the project was completed. This, according to the RBQ, was a lack of transparency. It confused people. It hid the identity of the contractor and it misled the public in general. Let's go back on the principle is Habitations Trigone is a trademark and it cannot have a licence. So first violation of the law right there. Next slide, please.

Then the RBQ looked at false declarations. If some of you have projects in Quebec you know that if you have a project co you do a new form at the RBQ each time and they ask you to answer these questions. Yes or no. Have you been in violation of this and that act and they realized that throughout several of the Trigone entities the declarations were false. This is a violation of section 70 of the Building Act. Next slide, please. Remedial notices and public safety. RBQ had managed to collect evidence from several years, stating that there were several non-conformities that were decided by the RBQ, that were not corrected within the timeline and they were able to demonstrate an overall lack of collaboration by Trigone with the authorities, on some issues that were quite crucial such as violations related to health and safety and fire. Next slide, please. Criminal and municipal offenses, under section 70 of the Building Act once again, the RBQ may suspend or cancel a licence when a company has been convicted of an offense under a list of laws. Only if there's a serious nature or the frequency of the offense justifies it, which in that sense, the proof was so substantial that the RBQ decided this was the case and that the accumulative effect of these offenses was contravening the public interest. Next slide, please. The quality of the work. There were many testimonials saying that the work was not adequate, and because those were shell companies and that they would cease to exist, the customers had no recourse and Habitations Trigone, as a defense, said that we've built 22,000 units, it is normal for us to have some violations but the RBQ stated that this is not a mathematical exercise and the number of units would not be a determining factor. Now the last claim was working without a licence. Not only that, we mentioned earlier Habitations Trigone didn't have a licence of its own because it's a trademark, the several entities that they were incorporating were also hiring subcontractors that did not have an adequate licence. It's the obligation of the contractor to ensure that its subcontractors hold the appropriate licences. Typically you do this by adding clauses in the contract but you can also check on the website to see if they have a valid licence. Next slide, please. The sanction was all of the licences were cancelled. The reason why they said all the licences were cancelled because they looked at Habitations Trigone, the trademark and the group as a whole, because all of them shared the same officers and the same guarantors. Once again, 134 page decision. Very condemning. They said basically that to allow them to operate would provide moral support for this type of behaviour. Next slide, please.

Obviously this decision was appealed at the Tribunal administratif du travail over 8 grounds and the Tribunal administratif suspended the decision until it was heard on its merits in January 2022. Part of the reasons why was that there's 12 ongoing projects, 2000 units are that being built right now, 1300 employees affected and several subcontractors. Next slide, please. I guess what we need to takeaway from this, to wrap up, is just the increased scrutiny over the RBQs activities. As we said, there were two public interest shows, a handful of articles. The main issues that are raised were that the licencing process is not adequate. Its been the same exam question since 2008, according to one report. Some claim that these exam questions can be bought online on the black market. There's no evaluation for sectors. There's no practical evaluation as well, and in terms of the inspection, Quebec is the only Province in Canada where residential construction inspection is not mandatory. Last slide. I will wrap up. RBQ now recognizes that there are adjustments that need to be made. They said they would hire more inspectors. They would review evaluations using the licencing processes which is important for everyone that's on the call because it means that there's more scrutiny over compliance. In the past few years there's been a lack of political will but the current Minister seems to be committed to take action. Last week a letter was sent by the Minister of Municipal Affairs and Housing giving the RBQ an ultimatum. She said she wants regulation to be adopted before March 1, 2022 for mandatory pre-purchase inspection and there's other elements that have been raised by the Minister. So that wraps it up for Quebec and we'll be looking out for whatever new measures are being put in place. Thank you.

Sahil: Thank you, Joey, and everyone else and thank you to all of our participants who stayed on during this webinar so far. There's lots going on in the construction world across the country and at the time of the registration we had asked you if you were interested in participating in our breakout rooms which we have set up Province by Province. My colleagues on this webinar are now going to add us into breakout rooms based on where you are located. So we look forward to meeting you in the breakout room, answering any questions and really try to connect with you. So thank you again for joining us and we look forward to seeing you in the respective breakout rooms.