Once again, Ontario is entering a state of emergency and enacting stricter lockdown rules intended to address the ongoing impacts of the COVID-19 pandemic. The new rules, which are expected to come into effect anytime before Thursday January 14, 2021, will impose stricter limits on the types of construction activities which may continue during the state of emergency.
Unlike the latest set of lockdown rules, only construction activities deemed "essential" may take place until the state of emergency is lifted. Although we don't know how long this will last, the state of emergency is for an initial 28 days but may be extended. The specifics of what is and what is not essential construction are not set in stone at the moment, and it is possible that changes may be made to this list up until the new lockdown regulation comes into effect.
From a high-level perspective however, it appears that certain classes of construction activities will be permitted to continue, including works related to infrastructure, education, prescribed industrial activities, and projects started prior to January 12, 2021 which are intended to increase capacity for businesses that provide logistical or information technology support. As it relates to residential construction the new regulation is expected to allow limited construction activities to continue, including all residential renovations which started before January 12, 2021.
More particularly, and as of the writing of this article, it appears that the provincial government's next emergency regulation will designate the following activities as essential construction. This list will be updated once the regulation has been released. All other construction activities are required to stop throughout the duration of the state of emergency, or until the regulation is amended to change what construction activities may continue:
- Construction projects and services associated with the healthcare sector and long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
- Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, provincial infrastructure, including transit, transportation, energy, mining, and justice sectors beyond the day-to-day maintenance.
- Construction projects and services that support the operations of, and provide new capacity in schools, colleges, universities, municipal infrastructure and child care centres within the meaning of the Child Care and Early Years Act, 2014.
- Construction projects under the Investing in Canada Infrastructure Program
- Construction projects and services that support the operations of Broadband internet and cellular technologies and services.
- Critical industrial construction activities required for:
- the maintenance and operations of petrochemical plants and refineries;
- significant industrial petrochemical projects where preliminary work has already commenced;
- 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.
- Construction projects that are due to be completed before July 2021 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products.
- Construction projects that were commenced before January 12, 2021, and that would:
- provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
- provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services.
- Residential construction projects where:
- a footing permit has been granted for single family, semi-detached and townhomes
- the project is a condominium, mixed use or other residential building, or
- the project involves renovations to residential properties and construction work was started before January 12, 2021.
- Construction to prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure.
- Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.
- Below-grade multi-unit residential construction projects, such as apartments and condominiums.
- Construction on any project intended to provide either:
- affordable housing, or
- shelter or supports for vulnerable persons,
- If the project is being funded in whole or in part by, or is being undertaken by, any of the following:
- the Crown in right of Canada or in right of Ontario,
- an agency of the Crown in right of Canada or in right of Ontario,
- a municipality,
- a service manager as defined in the Housing Services Act, 2011, or
- a registered charity and not for profit within the meaning of the Income Tax Act (Canada).
As was the case with the first state of emergency in the Province from March 17, 2020 to July 24, 2020, no one knows how long these restrictions will remain in place. Those working on projects which are not considered essential should consider moving quickly to close down and secure their sites. The above list of essential construction projects is broad at present, but of course, subject to change depending on the provincial government's ongoing response to the pandemic. The latest emergency information regarding the pandemic and an updated list of orders potentially impacting construction activities can be found here.
For those construction activities deemed essential during the state of emergency, it is now more important than ever that special efforts are taken to comply with all public health guidance. The Premier's Office has announced the imposition of both new workplace safety requirements and additional enforcement mechanisms designed to identify individuals and workplaces violating the new rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.