The WHO declared the COVID-19 virus a worldwide pandemic on March 11, 2020. It is my hope that Canada is a little ahead of the curve. Nevertheless, the impact on our families, finances, and businesses are immediate and serious.
Below are valuable links and information for our construction clients, employers, employees, and horse people. Note that some of the available financial programmes are taking applications now. Almost every day the information changes so keep checking these and other websites.
Please also note that Courts are closed. There is some availability for urgent matters but all trials and other hearings are suspended until further notice.
- If construction work has not commenced or if the project is at a point where work can be temporarily suspended, consider delaying further work. The health and safety of workers and their families must take priority.
- Review your health and safety policies. Update them with COVID-19 protocols. Ensure you use best practices for hygiene and disease control and ENFORCE THE PROTOCOLS STRICTLY on-site, in the trailers, and at the office. You do not want to be the project site with a COVID-19 outbreak.
- If temporarily suspending construction, ensure the project site is adequately protected and secured. Establish an appropriate on-site monitoring system while the pandemic continues. Consider a remote monitoring system through cameras, etc.
- Review the project time schedule and reorganize workflow to accommodate potential and expected delays. Materials may take longer to obtain or be unavailable. Workers must strictly abide by social distancing and this will impact the time work takes to perform and the type of work that can be performed on-site.
- Check whether municipal inspectors are available to attend at the project site. Can permits be obtained at this time?
- How is the payment process impacted? Where possible, payment should be made electronically as cheque signing will be difficult. Are payment certifiers, engineers, etc. available to attend the project site to certify work?
- Check with your insurance broker. Do you have any coverage for this?
- Document everything. We are in uncharted waters. It is predictable that disputes will arise when the virus is passed. Make best decisions, inform all necessary people and trades as soon as possible, and put everything in writing.
- Force Majeure Clauses – Most
construction contracts include a clause that allows for delays in
construction where there are events, outside of the parties'
control, that in effect cause the work to be impossible to perform.
Examples include wars, labour strikes, and acts of God. Review the
Force Majeure clauses in your contracts for the following:
- Is a pandemic an event that is included in the Force Majeure clause?
- Must you provide written notice of the claim under the clause? If you don't provide the written notice required in your construction contract, your claim may very well be denied by the Courts.
- What does the clause permit you to do? Normally, a time extension is provided. What about construction costs? Follow the procedures set out in the contract, if any.
- Can you take measures to mitigate the delay and other damages? Courts expect parties to help themselves reduce damages where possible.
- Delay Claims – Most construction contracts include a clause regarding delays to the work. Time extensions and construction costs are provided for and usually, the party causing the delay absorbs the damages. What does your contract say?
- Written Notice – There are Court cases in which a contractor found itself out of luck in a delay claim or other claim because it did not provide the written notice required by the construction contract to the other party. The deadline to provide written notice could be a matter of days. So READ YOUR CONTRACT. You do not want to be denied a remedy at this trying financial time because you failed to read the fine print.
Construction Liens and other time-sensitive procedural actions:
- Limitation periods and procedural time periods have been suspended in Ontario. See the link below from the Law Society of Ontario website. This means that the deadline to file a construction lien, and other time-sensitive procedural actions required by statute or rule, are suspended. Please contact your lawyer for further information.
There are many useful links and information available for employers and employees. The key is to find out about the programmes available to you for financial relief and to apply as soon as possible.
Here are some of the links that I have found useful. As you know, the information is changing almost daily.
- The Canadian Payroll Association has an excellent Facts link on COVID-19 for employers. It answers many of your questions including how to fill out a ROE.
- The Ontario General Contractors Association has an excellent link on all things COVID-19 with direct links to information including job-protected leave passed under the Employment Standards Amendment Act last week, COVID-19 health information, and industry information.
- MNP has provided some good information on taxes and measures being implemented related to timing and relief.
- The Federal government has links for information related to the Temporary Wage Subsidy for Employers and Work Share programmes.
Ontario Equestrian and Equine Canada have issued statements on COVID-19 and its impacts on the horse industry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.