The Limitation Periods O. Reg 73/20 order ended, and suspended time periods resumed running on September 14, 2020. The initial emergency legislation had an impact on document retention requirements, as it suspended most limitation periods, including the 15-year limitation of architect’s liability. If the 15-year period on a project was about to expire, the legislation effectively postpones the expiration until after the emergency ends. You should retain any documents related to the project until after the limitation period does expire.
Confirm with your legal counsel which projects were affected and when the limitation periods do expire.
Keep updated on the emergency legislation as orders may again be introduced that affect the limitations periods.
Last updated: January 13, 2021
Force majeure is totally dependent on the wording of each contract. As a result, there is no generic advice other than to consult a lawyer about the particulars of each contract and the applicable situation.
In general, it comes down to the wording of the individual contract clauses. No blanket statement regarding COVID-19 and the application of force majeure provisions is possible. Despite the declaration of a pandemic, until it is litigated, no one can definitively say that COVID-19 meets the force majeure criteria of any particular contract or if it meets the requirements of one contract that it meets the requirements of another.
Holders of Certificates of Practice should not offer legal advice to clients. It is not for the holder to decide if delays due to COVID-19 qualify under CCDC 2 or any similar contract as a “cause beyond the Contractor’s control.” Should a holder receive any “Notice in Writing of the cause of the delay,” they should forward it to the owner with the advice to review the notice with their lawyer. It is up to the owner upon advice from their legal counsel to decide to accept the notice as valid or not.
The statements made above relating to construction contracts apply also to Client/Architect or Client/Licensed Technologist OAA agreements. Holders should seek to come to mutual agreements with their clients about any delays in the performance of their services and how the contract is affected. Any holder looking to rely on any force majeure clauses in the client/services agreement should consult a lawyer about the particulars of each contract.
The websites of many construction law firms contain articles about what lawyers understand and are saying at this time. All such information is subject to change.
Last updated: January 14, 2021
Construction Act Prompt Payment Provisions
All the legal websites surveyed as of March 30, 2020 are of the opinion that the Construction Act prompt payment provisions and timelines are still in effect.
Last updated: January 14, 2021
Release of Statutory Holdback
On March 20, 2020, the Ontario Government passed O. Reg. 73/20, which automatically suspends any limitation period imposed by any Ontario law for the duration of the emergency, retroactive to March 16.
Holders should process applications for release of statutory holdback in accordance with the provisions of the Construction Lien Act or Construction Act and the construction contract applicable to any project. Include in a covering letter with the certificate for payment for release of holdback, along with the usual recommendation that the client have their lawyer check that no liens have been filed, a recommendation that before the holdback is released, the client should have their lawyer advise about the impact of any new legislation or court rulings that might affect the release of the holdback.
Last updated: January 14, 2021
Repurposing Existing Buildings and Putting Up Temporary Structures
The Ontario government has made an additional emergency order under the Emergency Management and Civil Protection Act to make it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. This has resulted in changes to the application of the Building Code and the Planning Act to temporary emergency buildings. Some may be wondering about the changes and the related considerations.
The Ministry of Municipal Affairs and Housing (MMAH) has advised the OAA that the Ontario government has made an additional emergency order under the Emergency Management and Civil Protection Act to make it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. (You can read a news release here.)
The emergency order exempts temporary new facilities or existing buildings repurposed for COVID-19 related purposes such as treating patients or providing shelter from the Building Code and the need to obtain a building permit. It also exempts these facilities from some requirements of the Planning Act. In order to ensure these buildings are safe, the order also requires that an architect and a professional engineer, both of whom are licensed to practice in Ontario, have designed or taken responsibility for the design of the construction of that facility or the part of the facility, and have provided the designs to the chief building official. These facilities will also be subject to inspections from municipal building officials.
A few considerations:
1. Although the emergency order states exemption from complying with certain laws, this does not include the Architects Act, the Professional Engineers Act, or their regulations. Life safety is of paramount importance.
2. Notwithstanding application of the building code has been suspended for projects covered by this emergency order, architects are reminded of their professional obligation to safeguard life and fire safety. The professional standards of the practice of architecture in Ontario remain in effect. These facilities will be subject to inspection prior to occupancy (or at each stage of phased occupancy) and will be routinely inspected by the CBO to ensure these parameters remain in place during the lifecycle of the structures. The government has advised its intention to eventually disassemble these temporary interventions that are currently intended to address the COVID-19 pandemic.
3. The Architects Act and Regulations are explicit with respect to professional design and general review requirements in the Province of Ontario. Architects are responsible for the design of assembly occupancies; engineers are responsible for the engineering related to the design of assembly occupancies.
4. It is important to review Pro-Demnity Bulletin 6, Projects Proceeding Without a Building Permit.
MMAH has also confirmed the following, further to a stakeholder consultation session held April 24.
1. While building permits will not be issued, the CBO will be issuing an attestation following the receipt of the design in lieu of a permit. The Order does not prescribe the format or content of the attestation. This will be at the discretion of the CBO.
2. The Order does not prescribe the standard approach that will be taken in regard to the CBO’s inspection reports. This is to say the extent of the content and the format is at the discretion of the CBO. Not withstanding the building code is suspended, building officials will rely on definition of “unsafe building” as stated in Section 15.9 the Building Code Act 1992 to assess these temporary interventions.
3. The CBO will continue to rely on the general review reports issued by the architect and professional engineer in order to conduct their inspection.
MMAH has confirmed that only hospitals and government will be permitted to erect these temporary structures under the Order. These emergency projects will require professionals who understand what it takes to get projects such as health-care facilities done well and safely. The government is entrusting architects and engineers in doing their part to protect the public.
Latest updated: April 28, 2020