With vaccinations increasing steadily and COVID-19 cases on a consistent decline, the prospect of returning to some semblance of “normal” is exciting and starting to materialize as a possible reality for our members and society as a whole. COVID-19 has been a real pain for everyone and created not only an added layer of stress because of the actual pandemic itself, but multiple pandemic-related issues have manifested that are causing our members grief!
I want to highlight a few issues that make me cringe and tell you how the OGCA is addressing them:
Issue number one: Force Majeure
The very first issue that reared its head at the onset of COVID-19, and that has endured for over a year, is that of “force majeure.” This issue has been punctuated further still by the Metrolinx appeal of a court decision on the matter on June 2, 2021.
The argument tabled by some public sector owners, Metrolinx included, for why they don’t believe that COVID-19 and a pandemic constitutes the triggering of “force majeure” clauses in contracts is rather mind boggling. These owners are not attributing any pandemic-related costs to the current “force majeure” clauses of contracts, and instead, are downloading this on to our contractors.
You will all recall that the entire nature of “force majeure” clauses is that they “excuse non-performance of a contractual obligation upon the occurrence of a specified, unforeseeable or unpredictable event or circumstance that is beyond the parties' control.”
Metrolinx holds a position that Ontario is simply in a “state of emergency” and hence refuses to recognize the “force majeure” relationship in the contract. Broad question: “What led us to this state of emergency in the first place?” Clearly, a pandemic that literally caught the world by surprise constitutes an unforeseeable, or at least unpredictable, circumstance or event.
So instead of paying our contractors for the pandemic-related costs they have incurred, these owners have opted to spend taxpayer’s money on legal battles that, in my opinion, will certainly conclude with a precedent setting court directive to these owners to pay the contractors. Instead of working collaboratively, they have chosen to fight. The money they are allocating to this defense could have been millions paid for further infrastructure investments into projects that would stimulate the economy.
The OGCA has taken an early and consistent position on this issue. Pay out the pandemic-related costs to the contractors instead of downloading this onto the contractors. And if you are openly denying that COVID-19 or a pandemic exists, give your heads a shake!
Issue number two: Closure of Commercial Construction
At the early onset of COVID-19, the entire construction industry was on pins and needles as we all sought to ascertain the severity of this virus. Since our initial government mandated closure in April 2020, for a six-week period, the OGCA has continually fought to reopen all of ICI construction and to demonstrate that we were more than up to the challenge posed by COVID-19.
This fact was clearly demonstrated in a quantifiable format through our weekly tally from the WSIB on all COVID-19 related claims. All of construction combined has only amounted to approximately 2% of all workplace COVID-19 claims, even though we account for 11% of the workforce covered. This clearly demonstrates that it is safer to be on a construction site than it is to walk around in the general public.
So why is it that most commercial projects remain in a mandated state of closure until the government says we can recommence?
This is clearly the infuriating part of all of this. All of construction, save for some commercial projects, were allowed to proceed unencumbered while commercial construction is sacrificed and private clients are affected. Interesting how no public sector work, especially any that is directly for the province, was ceased. This may be something that our provincial government should have pondered during all of the addresses to standing committees and letters submitted by the OGCA on behalf of our affected members.
But the private sector is once again relegated to a secondary status. I wish to caution the provincial government at this time that, in my opinion, those commercial owners and contractors adversely affected by this arbitrary closure will be voting soon in an upcoming election.
Issue number three: Vaccinations
Clearly all of the data compiled indicates that in order for society to emerge from this pandemic, the vast majority of the population needs to be vaccinated. This spurred discussions and positions on both sides regarding construction contractors mandating their workers to get vaccinated. And yet there are those that are staunch in their position that it is against their human rights.
The OGCA is firmly on the side that contractors are obligated to ensure that their workers obtain and communicate when they are vaccinated. Ontario Health and Safety (OHS) laws requires that an Employer / supervisor must “take every precaution reasonable in the circumstances for the protection of a worker” (s. 25(2)(h), 27(2)(c)).
OHS law supports legal authority for an employer to require mandatory proof of COVID-19 vaccination, with Human Rights exceptions. These exceptions are specific and do not include a worker’s reluctance to be vaccinated based on personal anxiety, confusing media and political messages nor on ideological and irrational commitment to opposing vaccinations generally and COVID-19 vaccinations in particular. Therefore, if you are an anti-vaxxer, that is not a viable defense!
The OGCA is working with our legal APP member Norm Keith in the development of a template vaccination policy to be shared and that will be editable so that all OGCA members are aptly prepared. This template is almost completed and once finalized, the OGCA shall share it amongst our members through email and posting it to our website.
Please note that I could easily list many more items, but in the confines of space and your valuable time, I will limit myself to the items listed above…for now!
Should anyone want to discuss any of the issues raised here or if you require any assistance from the OGCA, please contact me directly at giovanni@ogca.ca or via phone at 905.671.3969.