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Author:
Jay Rider

Date:
2020.04.04

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THE EMPLOYERS' EDGE

COVID-19 ESSENTIAL SERVICES LIST

Overview

On March 17, 2020 the Province of Ontario, pursuant to an Order-in-Cabinet, invoked its powers under the Emergency Management and Civil Protection Act (EMCPA) to declare a state of emergency in Ontario due to COVID-19.  Pursuant to section 7.02(4)5.of the EMPCA Cabinet has the power to Order the

Closing [of] any place, whether public or private, including any business, office, school, hospital or other establishment or institution.

On that same day, the Government of Ontario released lists of both essential and non-essential businesses and business activities.  All non-essential businesses were ordered to shut down.

Under the original order most projects in the construction industry, including all of those in the industrial, commercial and institutional (ICI) and residential sectors were deemed essential and exempt from closure.

On Friday, April 3, 2020, the Province announced that it had revised the list of businesses and business activities deemed to be essential.  As it pertains to the construction industry, the following business activities remain essential and therefore exempt from closure:

Maintenance

20. 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.

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,
i. the maintenance and operations of petrochemical plants and refineries,
ii. Significant industrial petrochemical projects where preliminary work has already commenced,
iii. 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. Residential construction projects where,
i. a footing permit has been granted for single family, semi-detached and townhomes,
ii. an above grade structural permit has been granted for condominiums, mixed use and other buildings, or
iii. the project involves renovations to residential properties and construction work was started before April 4, 2020.

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

Further to this revised EMCPA Order, all non-essential construction work and projects are to cease as of 11:59 p.m. today, Saturday, April 4, 2020.

There are going to be some clear cases, but also some tough judgment calls that individual contractors will have to make about their projects.  Each project will have to be assessed on a case by case basis having regard to the nature of the work being performed and the purpose it is intended to serve.

For non-essential sites, there is no clear timeline to complete all activities at site.  What is clear is that the only work at non-essential sites that can continue past midnight today is work that is:

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

Non-Compliance

The penalties for non-compliance are potentially extremely severe: 

Non-compliance risks significant penalties:

  • Individuals may be fined up to $100,000 and imprisoned for up to one year for failing to comply with an order made under s. 7.0.2(4) of the EMCPA (s. 7.0.11(1)(a)).
  • A corporation may be fined up to $10,000,000 for failing to comply, while its directors and officers may each be fined up to $500,000 and imprisoned for up to one year (ss. 7.0.11(1)(b)-(c)).

Despite these statutory maximums, a court may increase a fine “by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence” (s. 7.0.11(3)). Further, “[a] person is guilty of a separate offence on each day that an offence occurs or continues” (s. 7.0.11(2)). The government may also obtain a court order to force a person not to contravene, or to stop contravening, one of the Cabinet’s emergency orders (s. 7.0.5)

Conclusion

In connection with the revised list of essential services the Province has published the following information:

If you have questions about what will be open or impacts to your business or employment, call the Stop the Spread Business Information Line at 1-888-444-3659.

We recommend that you call this help line to get an opinion from a government representative on your construction sites.  You should obtain an email address from the representative that you speak with and then document the advice you receive in writing by way of a return email reiterating the advice you have received. 

Additionally, if you have owners or general contractors who insist that insist you continue to work on their sites, we suggest you get it in writing from them that they view your work as covered by the essential services list and that they are therefore ordering you to continue to fulfil your contractual obligations. 

 



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