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This Week in Construction Law: November 1 – 5, 2021

In Federal news, the Minister of Transport is expected to make a major announcement today regarding vaccine requirements. In advance of that announcement, the Crown corporation Defence Construction Canada published a notice of their new vaccine policy, which requires all contractor and consultant personnel to be fully vaccinated against COVID-19 to enter Government of Canada worksites as of November 15, 2021.

Also in Federal news, the returning Liberal government has for the first time created a ministry for housing and appointed Ahmed Hussen as its inaugural minister. The construction industry has expressed optimism that this news affirms the federal government’s commitment to election promises to substantially increase new home construction and streamline the planning and development approvals process.

Nationally, a speaker at a recent Women in Construction conference hosted by the Residential Construction Council of Ontario expressed frustration at persistent barriers in the industry, citing bullying and harassment on work sites as the top reason for the continuing gender imbalance: “Nice policies and…good intentions don’t necessarily translate to what is actually happening on the worksites.”

In Ontario, the provincial government proposed legislation requiring employers with 25 or more employees to develop disconnecting-from-work policies, covering subjects such as expected response time for emails and out-of-office notifications. It would be the first law of its kind in Canada.

The same Ontario legislation would reduce barriers to immigrants applying for licencing in regulated professions and trades such as law, accounting, architecture, engineering, electrical and plumbing. Among other changes, the legislation would eliminate most Canadian work experience requirements to enter regulated professions and trades, and streamline language proficiency testing.

In commentary this week, John Bleasby wrote about the ‘tender trap’, cautioning about the limiting effect of tendering a contract on the tender’s ability to close a deal for the tendered work with non-tendering companies.

Jamie Collum and Andrew Cartwright wrote about the fraught transition from contracting into the development business, especially the difference in how cash flow is managed, and provide advice about how a contractor should structure and paper a development venture to avoid preventable frustrations.

This week’s jurisprudence includes the fascinating case of Labourers International Union of North America, Local 615 v Grafton Developments Inc., 2021 CanLII 104265 (NSLB). At issue: the certification of a union consisting of labourers employed by the fledgling construction firm Grafton Developments Inc. Certification was initially denied, as less than 35% of the employees were members of the union. The union appealed, claiming that six of the employees initially included in the headcount of the proposed bargaining unit were actually cleaning staff employed on a temporary basis. The Nova Scotia Labour Board found that because the work and treatment of the cleaning staff were sufficiently different from that of Grafton’s construction labourers, the cleaning staff were not appropriately considered part of the same bargaining unit. With the removal of the cleaning staff from consideration, union membership in the proposed bargaining unit met the threshold, and the union was granted certification.

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