Nouveaux décrets de fermeture en Ontario pour les chantiers de construction jugés non essentiels (disponible en anglais)

UPDATED to April 19, 2021 - This article is current to including O. Reg 297/21 that amendments to O. Reg 82/20.

On April 16, 2021, in response to alarming new COVID-19 case growth and a third wave of the COVID-19 pandemic, the Ontario government announced a return to shut down of non-essential construction projects, with effect at 12:01 a.m. on Saturday, April 17, 2021.

The public announcement includes additional measures to prevent the spread of COVID-19, including more rigorous enforcement of the shut down orders, renewed "stay at home" requirements and limiting border crossings. The current lockdown was also extended a further 2 weeks.

This article summarizes the additional measures that impact construction projects in Ontario.

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. The permitted construction activities is nearly identical to the list of permitted construction activities as the shut down orders issued in January 2021, with two notable expansions of permitted construction activities:

1. If the construction was commenced before April 17, 2021 and it would provide additional capacity to, or enhance the efficiency of operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials, it is considered essential and permitted.
    
2. All residential construction is now considered essential and permitted if it is "residential construction activities or projects and related services".

All other construction work, activities, and services were ordered to cease at 12:01am on April 17, 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.

In summary, until the current lockdown orders are lifted, 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 health care 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, or provide new capacity in, schools, colleges, universities or 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 commenced before April 17, 2021, or
3. industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance 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 April 17, 2021 and that would,

1. provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services,
2. provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services, or
3. provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials;

8. support the operations of broadband internet and cellular technologies and services;
9. are residential construction activities or projects and related services;
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; or

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,
2. an agency of the Crown in right of Canada or in right of Ontario,
3. a municipality,
4. a service manager as defined the Housing Services Act, 2011,
5. a registered charity within the meaning of the Income Tax Act (Canada), or
6. a not-for-profit corporation.

Other construction-related activities

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

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.

Enforcement

At Premier Doug Ford's press conference on April 16, 2021 to announce the new shut down orders, the Premier also announced that the Province is launching inspection enforcement blitzes commencing April 19, including for construction projects. Over 200 inspectors will be visiting over 1,300 construction sites in the coming weeks.

It was also announced that, at 12:01AM on Monday, April 19, 2021, Ontario will set up checkpoints at all interprovincial borders to limit access to border crossings between Ontario and Manitoba and Quebec. Travelers coming into Ontario for work and transportation of goods, among others, will be permitted to enter Ontario. More details are available in O. Reg 293/21 under the Emergency Management and Civil Protection Act, RSO 1990, c E9.

Conclusion

The Province is reacting to the evolving pandemic with regular updates, further amendments and clarifications. 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.