The Ontario General Contractors Association (OGCA) has sent a letter to Premier Doug Ford outlining serious problems besetting the construction sector due to the COVID-19 pandemic and asking for a series of remedial actions.
“Our members are facing extreme difficulties, both keeping our workers safe and continuing operations,” stated the March 30 document, which was signed by OGCA president Clive Thurston. “Supply chains from around the world are under threat, and as the pandemic hits more countries, the problem grows.”
Supplies of essential personal protective equipment are dwindling, the letter outlined, there is a “significant” problem with cash flow, workers are concerned with exposure to the virus and have been staying off the job in large numbers in some cases, and some firms are finding themselves unable to access holdbacks and fear being shut out of force majeure relief.
“Ontario’s construction industry will support our economy through this most difficult time. To do so, we need to partner with you to clear a few roadblocks, and confirm our dedication to remain open,” Thurston stated in the correspondence.
The letter outlined four measures requiring government action, drawn from an OGCA board resolution passed March 29. Thurston said in an interview there were signs the government would respond positively, and swiftly, to several of the measures proposed.
One of them, the need for government-approved worksite best-practices protocols to boost health and safety, has already been dealt with, with the release of the Chief Prevention Officer’s Guide for construction worksite safety March 29.
The government statement announcing the measures recognized the significant contribution of the OGCA in creating the guidelines.
Another, a call for contractual relief for contractors to ensure the release of holdbacks, appears to have been favourably received, Thurston said. The problem stems from the suspension of limitations and procedural time periods outlined in the Construction Lien Expiry Periods measures in the new Construction Act, which has resulted in the contractor’s statutory holdback not being issued and final payment being indefinitely delayed, the OGCA explained.
We need protection from that kind of bullying and we need protection under the law,
— Clive Thurston
Ontario General Contractors Association
“We got a good response asking us to provide proposed relief and we submitted it today,” said Thurston, explaining that the proposed regulatory solution involved an amendment to section 73/20 of the Construction Act. Action would have to be taken by the Attorney General.
The reform would enable immediate issuance of holdbacks in multiple cases.
“We hope there will be a quick response and that will eliminate another problem,” Thurston remarked.
Linked with the holdback request is the force majeure issue. Thurston explained that contractors hoping to rely on such provisions in public contracts in the case of inevitable project delays will find themselves thwarted by owners such as the Town of Oakville and the City of Toronto, whose councils have voted to deny them that right.
“This is a huge problem for us down the road,” he said. “If there’s a problem filing a delay claim, if it’s a problem with a site that eventually were to be shut down, owners have made it pretty clear, Oakville and Toronto being two, that we will not be allowed to rely on force majeure.
“We need protection from that kind of bullying and we need protection under the law because this is a very unique circumstance.”
The OGCA is also asking for relief from the WSIB through removing employer accountability for COVID‐19 claims. Thurston said the OGCA is expecting a response from that agency shortly.
The fourth relief measure requested by the OGCA is a plea for help in obtaining more PPE such as masks.
“Let me be very clear on this, we do not want to do anything that will endanger the front-line health care workers. They get first priority, period,” Thurston said.
“But it should be remembered, if you want to keep us working, we need to find some supplies. Because we just don’t have them, we are trying to make do with what we’ve got, stretching it to the limit.”
Access to PPE means contractors would be able to respond to the fears of workers who otherwise are reluctant to come to work, Thurston said. OGCA member contractors are telling him they are experiencing no-show shortages of between 25 per cent up to 80 per cent of their workforces.
“When you factor in a 25 per cent drop in the workforce, and factor in all the safeguards we are doing, productivity drops substantially,” he explained.
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