COVID-19 Update: Government of Alberta includes Construction as an “Essential Service” / Limitation and Procedural Deadlines Still in Effect for Builders’ Liens

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On March 27, 2020, Alberta’s Chief Medical Officer of Health issued CMOH order 07-2020 : 2020 COVID-19 response outlining new restrictions and prohibitions to protect Albertans and prevent the spread of COVID-19 (the “Order”).

Under section 29(2.1) of the Public Health Act, the Chief Medical Officer of Health (“CMOH”) has the authority to prohibit a person from attending a location for any period and subject to any conditions that CMOH considers appropriate, where the CMOH has determined that the person’s engaging in that activity could transmit an infectious agent.[1] The CMOH also has the authority to take whatever steps that are, in the CMOH’s opinion, necessary in order to lessen the impact of the public health emergency.

Effective March 27, 2020, “the gathering of persons in excess of 15 people in a group, in an outdoor location, is prohibited.”[2] Furthermore, “any persons gathering in an outdoor location must maintain a minimum of 2 metres distance from one another.” For the purposes of the Order, an essential service “is a service considered critical to preserving life, health, public safety and basic societal functioning.”

The Essential Services List

On the same day, the Government of Alberta outlined a list of essential businesses and services (the “Essential Services List”) which can continue to operate and provide services. Regarding the construction industry, the Essential Services List includes:

  • Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;
  • Construction projects and services required to ensure safe and reliable operations of critical provincial and municipal infrastructure, including transit, transportation, energy and justice sectors beyond day-to-day maintenance;
  • Construction work and services, including demolition services, in the industrial, commercial, institutional and residential sectors;
  • Construction work and services that supports health and safety environmental rehabilitation projects;
  • Construction projects to repair or render operable / safe any public conveyance, including elevators, escalators and ski lifts;
  • Construction projects and services that are required to ensure safe and reliable operations of critical energy infrastructure or support supply chains; and
  • Any other construction project that can safely abide by the CMOH Public Health guidelines/directives.[3]

As such, owners and operators who believe that their business activities fall under the above list are safe to continue operations.

The Government of Alberta notes that this list is not exhaustive, and is instead intended to provide general guidance to business owners and operators. As such, McCarthy Tétrault's Construction and Infrastructure Law Practice Group is available to assist businesses and operators who are unclear whether they fall under the construction activities outlined in the Essential Services List.

Finally, the Government of Alberta notes workplaces that are not otherwise restricted or ordered to close can have more than 15 workers on a work site as long as they follow all public health guidelines, including physical distancing measures. In short, employers should:

  • self-assess and find alternate ways to organize large group meetings;
  • cancel workplace gatherings of 15 or more people in a single space (such as training events);
  • employ mitigation strategies to limit risk; and
  • continue business continuity planning to prepare critical operations for any potential interruption.[4]

Procedural and Filing Deadlines under the Builders’ Lien Act

With respect to the procedural and filing times for builders’ liens under the Builders’ Liens Act, it appears that, unlike numerous other Alberta statutes, such filing times have not been suspended. See the March 30, 2020 Ministerial Order 27/2020 [Justice and Solicitor General] suspending limitation periods for reference, and note that the Schedule outlined in Appendix I does not include the Builders’ Lien Act.

Going Forward

McCarthy Tétrault’ s Construction and Infrastructure Law Practice Group, including the authors of this blog, remains on the lookout for important developments in this sector and will be there to inform, advise and support you throughout this unprecedented crisis. To this end, we will be maintaining a blog over the coming days and weeks with questions and answers addressing key legal issues to be considered in the circumstances and in light of this important announcement. These issues may be relevant to the development and implementation of your overall crisis strategy.

In this regard, we invite you to contact one of the authors of this blog to share with us any issues that are of concern to you in the course of your activities and that could be addressed in a future post.

[1]Public Health Act, RSA 2000, c P-37, s 29(2.1)

[2] Order in Council No. 07-2020: 2020 COVID-19 Response (Alberta) dated March 27, 2020.

[3] Government of Alberta, “Essential Services”, available at: https://www.alberta.ca/essential-services.aspx#toc-2

[4] Government of Alberta, “Essential Services”, available at: https://www.alberta.ca/essential-services.aspx#toc-2

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