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This Week in Construction Law: November 15 – 19, 2021

In Federal news, COVID-19 vaccines are causing industry consternation, especially mandatory proof of vaccination policies. A recent arbitration decision held that unlike mandatory vaccines for the common flu, requiring mandatory vaccination for COVID-19 is justified by the severity of the pandemic.

Also in Federal news, this year’s Canadian Council for Public-Private Partnerships Conference was held by videoconference this week. Kinga Surma, the Ontario minister of infrastructure, spoke about the provincial government’s plans to connect all Ontario communities to high-speed internet (a goal Ontario intends to meet by 2025), its shift to a progressive procurement model, and its focus on building transit-centered neighbourhoods. Prasad Panda, Alberta’s minister of infrastructure, spoke about the Alberta government’s focus on passing the Alberta Infrastructure Act, which aims to formalize project prioritization and provide infrastructure development with more accountability and transparency.

In Ontario, negotiations are underway in anticipation of the expiration of all labour agreements in the ICI, residential construction, sewer and watermain, heavy construction, and road construction sectors in April 2022, only five months away. Recent inflation is causing considerable uncertainty with respect to anticipated wages, and labour shortages are expected to make for animated discussions regarding matters like labour mobility and work fitness (e.g. cannabis consumption policy).

In Ontario, supply-chain disruptions caused by COVID-19 have led to concerns about the cost of liquidated damages because of later project completion dates. As disruptions force delays, arguments may arise about whether COVID-19 constitutes a force majeure event in the context of construction contracts.

In Ontario, demolition activities conducted at a Kitchener property under development by Drewlo Holdings Inc. caused a hydrocarbon spill into a nearby creek, leading to a charge under the Fisheries Act and a fine of $300,000. The company also agreed to engage an environmental consultant to review current practices, evaluate existing compliance with regulations and develop a training program for company leadership.

In Ontario, Ottawa’s traditionally insignificant industrial real estate market is experiencing dramatic change. More than three million square feet are currently under development and Ottawa is becoming a significant distribution hub for Amazon, among others. The reason? Ottawa is within one day’s driving distance of about 15 million people, more than either Montreal or Toronto.

In B.C., reconstruction of B.C.’s flood-ravaged highway system is underway but unlikely to be complete until next year. Due to the harsh terrain of B.C.’s interior, catastrophic damage has always occurred, including a 1965 landslide that required the permanent rerouting of the Hope-Princeton highway. However, climate change is likely to introduce more precipitation in sudden and unpredictable quantities, worsening the challenge of maintaining the B.C. road system considerably. In response, B.C.’s road engineers have moved away from construction planning based on historical data and toward planning based on complex climate modelling.

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