What you need to know about Ontario closure of "non-essential" construction projects as of April 17, 2021
On April 16, 2021, the Government of Ontario announced additional COVID-19 restrictions in light of the surge in cases throughout the province. These restrictions follow the Province’s recent declaration of emergency and a stay-at-home order. Included in the new list of restrictions is the closure of all “non-essential” construction projects effective April 17, 2021 at 12:01am.
The Government of Ontario has deemed the following construction activities or projects and related services essential, including 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 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;
(f) would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
(g) 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.
(h) support the operations of broadband internet and cellular technologies and services;
(i) are residential construction activities or projects and related services;
(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.
A Minister of Labour spokesperson has confirmed new and ongoing residential renovations are permitted to continue in light of the new restrictions. It was further explained on April 16, 2021 that shopping mall, hotel and office tower construction projects are not considered essential and are being shut down with these latest restrictions.
Construction sites that remain open may be subject to safety inspections. The Government of Ontario has enlisted 200 inspectors to conduct targeted province-wide inspections of 1,300 construction sites to enforce safety requirements, ensure employers understand the risks associated with COVID-19 and that measures and procedures are in place to prevent the spread of COVID-19 in the workplace. Inspectors may also be observing whether workers are practicing safe work habits while on the job and on breaks, including whether workers are wearing appropriate personal protective equipment and practicing physical distancing. Further, individuals who are not required to be on the construction site to perform their work are required to carry out their work remotely.
As we have seen throughout the pandemic, COVID-19 restrictions frequently change and the closure and reopening of certain construction sites remains an ongoing issue. Due to the immense pressure this COVID-19 wave is having on our health care system, the province stated the new restrictions will be “strongly, strongly enforced”. Operators of construction sites that have continued to operate must ensure they are permitted to remain open and must ensure appropriate health and safety measures are being taken to prevent the spread of COVID-19. Acting in contravention with the new restrictions could expose a corporation to substantial fine under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, with directors and officers of corporations potentially exposed in serious cases to significant consequences, including fines and possibly even imprisonment. If project stakeholders are unsure whether their project is impacted by the new restrictions, they should seek the appropriate advice in interpreting these requirements.
We will update this bulletin as restrictions are lifted or new restrictions are implemented.
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