Construction and Infrastructure Law in Canada Blog

COVID-19: Ontario’s second state of emergency – Amendments to list of permitted construction activities

Jan 19, 2021 5 MIN READ
Carly Fidler

Partner, Disputes, Toronto

Zander McGillivray

Associate, Construction, Infrastructure and Energy, Toronto

Richard Wong

Partner, Commercial, Toronto

Lia Bruschetta

Partner, Disputes, Toronto

Paul Ivanoff

Partner, Disputes, Toronto

On January 12, 2021, the Government of Ontario declared its second state of emergency in response to the COVID-19 pandemic. The Government announced that it would issue a province-wide stay-at-home order as well as enhanced public health and enforcement lockdown measures effective January 14, 2021.

As part of the package of enhanced measures, the Government has issued updated restrictions on construction activities. In particular, the activities described in the list below are permitted to continue because they have been deemed essential by the Province. The Province has indicated [PDF] that it anticipates its package of enhanced measures, including the restrictions on permitted construction activities, are anticipated to be in place until at least February 11, 2021.

Categories of permitted construction activities

Ontario Regulation 10/21, made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “ROA”), and amending Ontario Regulation 82/20, was published on January 13, 2021, came into force on January 14, 2021, and sets out the categories of construction activities permitted under the new restrictions.

Note that Ontario Regulation 82/20 was further amended on January 15, 2021 in part to allow construction activities or projects funded by the federal, provincial or municipal governments to continue (see, in particular, 43(l) as amended, below). On January 16, 2021, the Government announced that most of the orders under the ROA, including Ontario Regulation 82/20, will be extended another 30 days, until February 19, 2021. It remains to be seen if further amendments will be made to the list of permitted construction activities.

Ontario Regulation 82/20 permits construction activities or projects and related services, including land surveying and demolition services that:

(a) 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;

(b)  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;

(c)  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;

(d)  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;

(e)  are required for, (i)  the maintenance and operations of petrochemical plants and refineries, (ii)  significant industrial petrochemical projects where preliminary work commenced before January 12, 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;

(f)  would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

(g)  were commenced before January 12, 2021 and that would, (i)  provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or (ii)  provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services;

(h)  support the operations of broadband internet and cellular technologies and services;

(i)  are related to residential construction projects where, (i)  a building permit has been granted for a single family, semi-detached and townhomes, (ii)  the project is a condominium, mixed-use or other residential building, or (iii)  the project involves renovations to residential properties and construction work that was started before January 12, 2021;

(j)  prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;

(k)  are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;

(l)  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;

(m)  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, or (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 Legal Year in Review.

In addition, the regulation requires that businesses and organizations ensure that any person who performs work for the business or organization conducts 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, 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.