Rocco Sebastiano, Joel Heard, Andrew Wong, Paul Ivanoff, Allan Wells, Lia Bruschetta
Apr 21, 2020
For further information on the changes below or other construction matters, please contact one of the authors above or any member of our National Construction and Infrastructure Group.
Osler recently conducted a webinar (available on-demand) discussing the shutdown of certain parts of the construction sector by the Ontario Government in response to the COVID-19 pandemic.
In this Update, we answer audience questions raised during the webinar. The questions set out below have been edited to be more general in nature and the answers provided do not constitute legal or other professional advice. Readers are advised to seek specific legal advice by contacting the presenters (or their own legal counsel) regarding any specific legal issues.
1. Are construction projects relating to the pharmaceutical industry covered under item 27 of the list of essential businesses in Schedule 2 of the Order?
The Order does not provide a definition of the term “healthcare sector” in item 27, so it is difficult to provide an answer to this question with certainty. However, we would expect that item 27 would be given a broad interpretation to include the types of healthcare businesses referenced in items 36-44 under the heading “Health care and social services”. Item 41 in particular includes manufacturers, wholesalers, distributors and retailers of pharmaceutical products, medical supplies and devices. On that basis, we believe that item 27 could reasonably be interpreted as being broad enough to cover construction projects with respect to facilities used, or to be used, in the manufacture, sale or distribution of pharmaceutical products or medical supplies or devices.
2. Can a construction project be permitted to continue other than under items 27-31 of Schedule 2 of the Order?
In order to be permitted to continue, construction activities must fall within the ambit of one of items 27-31 (including item 29.1, which was added on April 10, 2020, to include construction projects that are due to be completed before October 4, 2020 that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products), unless the business relates to maintenance and repair services. For instance, item 20 (Maintenance) of the list of essential businesses covers maintenance and repair services strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings, and item 34(iv) (under the heading Community Services) covers businesses that deliver or support the delivery of services including critical infrastructure repair and maintenance such as roads, dams, bridges.
Further, it is likely that any new construction projects in relation to businesses listed in item 34 may be covered under item 28 as construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure. While the term “critical provincial infrastructure” is not defined in the Order, we believe that some guidance can be taken from the list of critical infrastructure sectors identified by Emergency Management Ontario.
3. What is the scope of item 30 of the Order?
Item 30 covers residential construction projects where, (a) a footing permit has been granted for single family and semi-detached homes and townhomes; (b) an above grade structural permit has been granted for condominiums, mixed use and other buildings; or (c) the project involves renovations to residential properties and construction work was started before April 4, 2020.
4. Who should determine whether a particular business is essential?
The person responsible for a place of business is responsible for compliance with all applicable laws, including the regulation on mandatory closure of places of non-essential businesses. Please refer to the discussion on Slide No. 4 of the presentation circulated to you.