It was a weekend of confusion in Ontario’s construction sector as stakeholders placed anxious phone calls and rifled off email questions to lawyers and construction authorities looking for guidance on what projects fell under the province’s new guidelines on essential workplaces during the COVID-19 pandemic.
“We have been talking to all the top lawyers of the province and they have been inundated,” said Clive Thurston, president of the Ontario General Contractors Association. “’What do I do?’ There are so many things that have not been thought through here.”
The new construction industry rules, announced the afternoon of April 3, designated many industrial and commercial construction projects as inessential but indicated work could continue on “critical provincial infrastructure” projects including transit, transportation, energy and justice builds if new capacity was being built.
And work could continue on residential projects including condos and mixed-use buildings if building permits had been granted.
There were eight categories of construction workplaces deemed essential in total.
Construction lawyer Geza Banfai, counsel to McMillan LLP, said there is a “grey zone” on the essential construction list that requires urgent clarification.
Somebody needs to take some leadership here and move this forward because it is devastating
— Clive Thurston
Ontario General Contractors Association
“By far the biggest problem with that list of essential workplaces is its ambiguity and uncertainty,” he said. “Is a university student residence a ‘residential construction project’ within the meaning of that list? Is the construction of commercial or institutional fit-out space within a condominium project?
“As of today (April 6), no one knows.”
Thurston noted that different school boards had issued divergent responses to the question of whether new schools are considered essential projects.
“Some of our members are saying, ‘I think I am supposed to stay open, and others are saying, well I’m shutting down. There is a library ordering my member to stay open and keep building. It’s a library, how is that essential?’”
Sewers and watermains and roadbuilding are also up in the air, Thurston said.
Both Banfai and Thurston stressed there is no clear authority and no definitive mechanism to obtain clarity for contractors and others to avoid the significant potential legal risks they could face if they were later found to have violated the prohibition on working.
“There is a lot of confusion here,” said Thurston. “It comes down to some very simple questions. Who is in charge, who is making the decisions and the interpretations, and who is going to do the enforcement?”
The OGCA executive said a Ministry of Labour help line did not clarify questions that have poured in since the Friday announcement and that at one point the association was told each ministry would determine which of its projects would be considered “essential.”
“We can’t follow the regulations because we don’t know,” said Thurston. “Somebody needs to take some leadership here and move this forward because it is devastating.”
Banfai remarked, “If the requests for help that we in the construction bar are now receiving is any indication, the industry as of the last few days has found itself with an urgent problem arising from the uncertainty created by the list itself. This is simply not a tenable situation.”
Thurston noted that the government has said it is listening to the industry as it makes policy but he charges, given his organization’s membership in the Construction and Design Alliance of Ontario (CDAO), with its 16 stakeholder associations, that the CDAO was not consulted on the list of essential workplaces.
He said the CDAO is asking the government to form an advisory committee to address all construction matters during the COVID-19 crisis.
“We have been pushing for that with no response,” he said.
Banfai suggested the government should immediately establish a system for dispensing answers on questions of whether a project is essential with a binding letter verifying the conformance question.
A Ministry of Labour spokesperson was asked for comments but had not issued responses by the time of publication.
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