b'COVID-19CONSTRUCTION CONTRACTSIN THE PANDEMICLEGAL ISSUES TO CONSIDER WITH COVID-19 By Warren HeeleyCOVID-19 IS CHANGING THEcurrent and future contracts based onthe two-year clock to stop ticking in mid-WORLD. This particularly appliesaction taken by the provincial governmentMarch for construction liens and other to the construction industry becausebecause of the pandemic. claims. This move was unprecedented of the decisions made by the Ontarioand caused a great deal of confusion government to reduce the spread ofGOVERNMENT STEPS IN within the industry. By mid-April, the the virus that have impacted the trade.For purposes of this article, contractprovincial government exempted Stop work orders, freezing the claimsissues are separated into two timeconstruction from the claims freeze. process and delaying notices havecategories: those that have occurredHowever this meant the courts would put many contract terms in limbo andsince the work stoppages in March andhave to sort out the various claims and left construction companies trying toApril, and those that are or will occur asnotice requirements, and unfortunately, determine how to proceed under thesethe province moves towards restartingthe courts were not in a position to act on very unusual circumstances. the economy.these matters. There continues to be no direction from the court on most of these The industrys foundation of work isThe first issue that arose as workmatters and confusion in the industry.based on project contracts with specificstoppages began was the issue of which time and performance criteria forprojects could continue and which hadOther issues the industry needs direction contracted construction companies.to be shut down, says Glenn Ackerley,on include delay of notices required under Unfortunately, these contracts did notpartner at WeirFoulds LLP and TCA boardcontract terms. No one knows how long envision dealing with catastrophicmember. Despite directives from thethese delays will last or can identify who events such as the current pandemic orprovincial government, it was difficult tois responsible for added costs caused by work stoppages imposed by provincialsort out and became a grey area withthe pandemic such as added safety on governments. Add to this the fact that theprovincial inspectors having to makethe worksite and productivity/time losses. industry has no history with events suchdecisions on the fly. The bottom line is who is going to pay for as this and there is no question it will be athe increased project costs?lengthy process to sort out the contractualObviously, a job site that needs to be shut issues created by COVID-19. down presents a separate set of concernsCHALLENGES AHEADfrom a contractual standpoint from oneAs the economy of the province is So what will be the legal ramificationsthat can remain working. The shut-downrestarted, a number of new challenges of these work stoppages and who willsite incurs a far greater list of challenges.are arising. Firstly, government pandemic bear the costs? How will contractorsBut in each case, the performance termsactions to date will most likely result in recover costs for losses during the workof the project contracts are drasticallynew clauses in project contracts that stoppages and reduced productivity dueaffected, with many issues oftenprovide definitive methods to deal with to increased safety measures and otherremaining unresolved. work stoppages ordered by government such issues created by the pandemic?and methods to determine who is The reality is that TCA members must getIn particular, when work stoppagesresponsible for increased costs that engaged in this process and thoroughlywere ordered the province also froze theresult from such orders. Other areas to understand the risk associated withclaims process. This essentially causedresolve include supply chain shortages, 14Quarter 2 2020 BUILDERSDIGEST'