This included complying with public health guidelines that mandated pre-screening of labourers for COVID-19 when they arrive to work, cleaning and disinfecting worksites more than usual, and handwashing stations installed around the site so labourers could wash their hands regularly; they were also required to keep a two-metre distance from each other.
“That’s difficult at a construction site, and has the effect of reducing productivity,” says Reynolds. “All the testing, distancing, handwashing stations, cleaning and disinfecting, and supply chain issues: the issue was whether the pandemic itself constituted a force majeure event. There was quite a bit of debate” over five or six weeks, he says.
In the days and weeks following Ontario’s March 17 order there was a high level of activity in delivering notices between owners and contractors and between contractors and subcontractors, where a contract or subcontract contained force majeure provisions, and “a lot of correspondence” regarding what constituted a force majeure and what remedies are available to a contractor, he says.
Reynolds is not aware of any contracts that were in the midst of performance having been cancelled. “Some construction projects provide that if a site is shut down and stays shut down for, say, 180 days, either party can terminate the contract, but because the province’s order came to an end after two months, it doesn’t appear that this type of termination right should be an issue.”
Still, he says, “predictions are dire, as in other industries. All these requirements for pre-clearing, physical distancing, cleaning and handwashing