COVID-19: Ontario extends state of emergency and stay-at-home order – impact on permitted construction activities
On April 16, 2021, the Government of Ontario announced the extension of the provincial declaration of emergency and stay-at-home order first instituted on April 8, 2021 in response to the COVID-19 pandemic. The Government also announced enhanced public health and enforcement lockdown measures effective April 17, 2021.
As part of the package of enhanced measures, the Government has issued updated restrictions on construction activities. The list of permitted construction activities is largely the same as those announced during the second state of emergency in January 2021 discussed here. There are two notable differences between the list of permitted construction activities in the April regulation compared to those permitted in January:
- All residential construction activities or projects and related services are now permitted, regardless of when work commenced or whether a building permit has been granted.
- Added to the permitted list are construction activities that were commenced before April 17, 2021 and that would provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials.
The full list of construction activities – set out in the list below – are permitted to continue because they have been deemed essential by the Province.
Categories of permitted construction activities
Ontario Regulation 297/21, made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the ROA), and amending Ontario Regulation 82/20, was published and came into force on April 17, 2021 and sets out the categories of construction activities permitted under the new restrictions.
Ontario Regulation 82/20, as amended, (reproduced below) permits construction activities or projects and related services, including land surveying and demolition services, that,
- 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;
- ensure safe and reliable operations of, or provide new capacity in, (i) municipal infrastructure, or (ii) provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors;
- 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;
- 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;
- are required for, (i) the maintenance and operations of petrochemical plants and refineries, (ii) significant industrial petrochemical projects where preliminary work commenced before April 17, 2021, or (iii) 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;
- would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
- were commenced before April 17, 2021 and that would, (i) provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, (ii) provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services; or (iii) provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials;
- support the operations of broadband internet and cellular technologies and services;
- are residential construction activities or projects and related services;
- prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;
- are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;
- are funded in whole or in part by, (i) the Crown in right of Canada or in right of Ontario, (ii) an agency of the Crown in right of Canada or in right of Ontario, or (iii) a municipality; or
- are, (i) intended to provide shelter or supports for vulnerable persons or affordable housing; and (ii) being funded in whole or in part by, or are being undertaken by, (A) the Crown in right of Canada or in right of Ontario, (B) an agency of the Crown in right of Canada or in right of Ontario, (C) a municipality, (D) a service manager as defined the Housing Services Act, 2011, (E) a registered charity within the meaning of the Income Tax Act (Canada), or (F) a not-for-profit corporation.
The construction activities permitted to continue reflect pandemic-related priorities including health care, personal protective equipment, affordable housing and long-term care. The list of permitted construction activities also supports the recent government economic stimulus efforts in critical sectors such as affordable housing, broadband internet and cellular technologies, transit and projects under the Investing in Canada Infrastructure Program, as described in our Osler Year in Review.
In addition, the regulation requires that businesses and organizations ensure that individuals who perform work for the businesses or organizations conduct their work remotely, unless the nature of their work requires them to be on-site at the workplace. As such, individuals working in the construction industry that do not need to be on-site or in the office must work from home.
With rising case numbers and an increase in enforcement by public health authorities, it is even more important for all industry participants to address safety on site. Key resources include the Canadian Construction Association’s “Standardized Protocols for All Canadian Construction Sites [PDF]” and the Ontario General Contractors Association’s “Working with Physical Distancing Protocol [PDF].”
Our team is ready to assist in answering questions concerning the interpretation of the regulation itself, including any future clarifications or amendments that may be published, as well as the potential implications under various construction contracts. While many construction projects can continue under the regulation, some will be required to shut down operations. Our webinar from the construction shutdown near the beginning of the pandemic provides helpful guidance on navigating decisions around shutdown and how to implement measures to address the potential impacts of the COVID-19 pandemic.
Stay informed and communicate
As the response to COVID-19 is evolving rapidly, everyone should continue to stay informed as new developments arise and communicate to employees, customers and other stakeholders. We have centralized relevant content on our “Coronavirus: Navigating legal implications and business impacts” client communication page.