Staying open during the COVID-19 pandemic
The Provincial Government of British Columbia has indicated that “construction work, construction firms, skilled trades, and professionals, and; construction and light industrial machinery and equipment rental” are non-health essential service providers and as such can stay open during the COVID-19 pandemic.
However, this does not mean that business is as usual for construction projects. In particular, construction projects need to follow the guidelines as released by the Provincial Government of British Columbia on March 22, 2020 (the “Guidelines”). The Guidelines include requirements by construction projects to:
- limit 50 people in the same space;
- maintain a distance of 2 metres apart where possible;
- post signage that limits occupants of elevators to four people;
- hold site meetings in open spaces;
- increase handwashing stations;
- maintain a current list of employees; and
- complete a daily cleaning of common areas and surfaces.
Importantly, the Guidelines confirm that the order of Dr. Bonnie Henry, Provincial Health Officer, dated March 16, 2020, indicating that all gatherings of people in excess of 50 people are prohibited, does not apply to construction sites as a whole.
Requirement to comply with the Guidelines to avoid liability
As of April 2, 2020, by order (the “Liability Order”) of the Minister of Public Safety and Solicitor General, those persons who operate or provide essential services are protected from liability for damages relating, directly or indirectly, to COVID-19, if those operating or providing those services are doing so in accordance with all applicable emergency and public health guidance. As such, to receive the protection of the Liability Order, construction sites must comply with the Guidelines.
Court Process and the continuation of Builders Lien Act timelines
Although construction projects are deemed essential and can continue to proceed within the confines of the Guidelines, the impact of the COVID-19 pandemic on the construction industry is not limited to the ability or inability to work. As with any business, conflicts may arise through your construction project that require attendance at court for a resolution.
Unfortunately, effective March 19, 2020, revised April 16, 2020, by the order (the “Closure Order”) of Chief Justice Christopher E. Hinkson of the Supreme Court of British Columbia, all regular court operations are suspended and all matters scheduled to be heard are automatically adjourned. Despite this suspension, the Closure Order indicates that courts, at their discretion, may hear essential and urgent matters (for more information on what is essential and urgent, please visit our COVID Family or Civil Litigation posts).
Importantly, this closure in itself does not address limitation periods or timelines that may be relevant to your construction dispute. On April 8, 2020, the Minister of Public Safety and Solicitor General of British Columbia addressed the issue of running timelines during a court closure through a declaration that suspended all mandatory limitation periods and other mandatory time periods under the Limitation Periods (COVID-19) Order No. 2 (the “Limitation Order”) effective April 15, 2020. The Limitation Order will be in effect until the date on which the last extension of the declaration of a state of emergency made March 18, 2020 under section 9(1) of the Emergency Program Act expires or is cancelled. However, it is important to note that the Limitation Order explicitly carves out mandatory limitation periods and mandatory time periods established under the Builders Lien Act and Division 5 [Builders Liens and Other Charges] of Part 5 [Property] of the Strata Property Act from this suspension. This means that builders lien claims must still be filed within forty-five days from the date on which: a certificate of completion is filed, the head contract has been completed, abandoned or terminated, or the improvement has been completed or abandoned.
