Province adds agri-construction projects as “essential services” under amended COVID-19 emergency regulations: Other work is restricted

Ontario Construction News staff writer

The provincial government has introduced amendments to its emergency regulations to permit “construction projects that are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food or beverages or agricultural products.”

The changes, introduced last Thursday, are narrow in scope, indicating that the government is keeping a generally tight interpretation on which projects are essential, and which are not. 

“In the face of the amendment, it will not in our view be possible to argue that a project should continue merely because it is being undertaken on the operations of an essential business,” Robert Kennaley of Kennaley Construction Law, wrote in an e-letter.

The narrow scope of essential services will only be allowed if that work is itself specifically deemed essential in paragraphs 20 or 27-31 of the emergency regulations, he wrote.

Paragraph 20 relates to maintenance and says: “Maintenance, repair and property management services strictly necessary to manage and maintain the safety, security, sanitation and essential operation of institutional, commercial, industrial and residential properties and buildings.”

While the construction exemptions are as outlined here:

Construction

27. Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
28. Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance.
29. Critical industrial construction activities required for,

1. 1. the maintenance and operations of petrochemical plants and refineries,
   2. significant industrial petrochemical projects where preliminary work has already commenced,
   3. industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combatting the COVID-19 pandemic.

30. Construction projects that are due to be completed before Oct. 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products.
31. Residential construction projects where,

1. 1. a footing permit has been granted for single family, semi-detached and townhomes
   2. an above grade structural permit has been granted for condominiums, mixed use and other buildings, or
   3. the project involves renovations to residential properties and construction work was started before April 4, 2020.

32. Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.

“In the face of the amendment, it will not in our view be possible to argue that a project should continue merely because it is being undertaken on the operations of an essential business,” Kennaley wrote. “This is so even if the work will substantially increase the ability of the business to provide its essential services and regardless of the extent to which the public is in need of such expanded services.”

Penalties for violations of the emergency regulations can be severe, though it is unclear whether the government will enforce these to the fullest power.  

A director or officer of the corporation that violates the Essential Services List Regulation may be fined up to $500,000 and imprisoned for up to a year, and a corporation can be fined up to $10 million each per day of the contravention.

As it becomes clear that the scope of the exemptions is narrow (outside of the residential construction industry), cities such as Ottawa have given the go-ahead for road and sewer works and public safety buildings, but stopped construction of community centres, parks and non-essential public services. Several school districts have also sent out instructions to contractors to stop working.

Several landscape contractors have continued working, despite their duties not apparently being covered under the specific regulations for emergency work. This has caused some controversy within the landscaping industry.

“We don’t need a poll to tell us the industry in Ontario is divided,” Landscape Ontario deputy executive director Joe Salemi wrote in a memo last Thursday. “We don’t need to conduct a survey to know that the landscape profession is not aligned when it comes to Landscape Ontario’s position on the provincial government’s Essential Workplaces List and how it’s interpreted. These divisions are playing out on social media, phone calls, emails, bulletins on websites and the list goes on.

“This is Landscape Ontario’s position: In light of our ultimate safety responsibility, member companies are advised to not work, unless you can cite specific government permission based on your interpretation of Section 20, 24, 26 and 30 of the Essential Workplaces List, upgraded safety protocols are in place and you have confirmed insurance coverage.”