OGCA seeks provincial clarification about COVID-19 construction work stoppage at school projects

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Ontario Construction News staff writer

The Ontario General Contractors Association (OGCA) has asked education minister Stephen Lecce for clarity about school construction during the provincial COVID-19 emergency.

In an April 15 letter, OGCA president Clive Thurston says there are “industry‐wide concerns about the lack of consistency across the province’s school districts” in imposing emergency regulations that require much of the province’s construction work to stop.

“Although three school boards have officially indicated their project sites as shutdown and thus issued legal stop‐work orders, many others have not formally stopped work and have left potentially significant legal ambiguities for contractors,” Thurston wrote.

“To solve this problem, the OGCA recommends that the Government of Ontario send a definitive message to contractors working on school construction in Ontario that there is no clear exemption for projects of this nature under the regulation.”

Thurston says members have (as of April 15) only received confirmation of worksites shutting down from the Toronto District School Board, the Durham Catholic District School Board and the Hamilton School Board.”

Matters are compounded by the fact that the lack of clarity from other districts means contractors could be caught in a legal bind – between their obligations to complete work under their contract terms, and the uncertain application of the “stay at home” emergency regulations.

Thurston wrote that “confusion remains across Ontario as there is no commonality amongst each school board.”

“Even worse, by lacking direction, many school boards have sent a series of owner threats to contractors foreshadowing a legal quagmire that will occur if the government does not act to clarify the status of schools. Provincial leadership is needed to formally clarify what projects should continue and what projects should not. This will allow contractors the assurance that they are not liable for delays outside their control.”

Thurston attached a letter from the Peel District School board to Remo General Contracting Ltd. in Brampton to outline the project.

“We understand that you have taken the position that the government’s directive is effectively a stop work order,” school board controller C.R. Wright wrote to Raymond Mollica at Remo General Contracting.  “If such is determined to be the case, in accordance with the contract the board may, in conjunction with its consultant, consider claims for reasonable costs you have incurred as a result of delays solely due to the government’s order. A final determination of this will be made at the time of substantial performance.”

“In accordance with the contract, the board will in any event, in conjunction with its consultant, consider what a reasonable extension fo the contract time may be once the government permits construction activity on projects of this nature to continue.”

The OGCA says this sort of communication reflects the serious “lack of clarity” on the issue.

“Minister, while we appreciate the safety of students, teachers and staff is of the highest priority, school builders need further clarification on these crucial contracts,” Thurston wrote. “These contractors who have been working on public and Catholic school board project sites urgently need a decision from the Ministry of Education that shall apply across the province.”

“Ontario’s construction industry will support the continued growth of our education system through this most difficult time. To do so, we need to partner with you to clear a few roadblocks and confirm our dedication to keeping sites safe.”

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