Written by Samuel St-Jean
With the year 2020 now behind us, many analysts are now studying the events and their impact, which will inevitably continue to be felt in the coming months and years.
Although the construction industry, as a critical sector, has been somewhat spared the worst effects of the COVID-19 pandemic (the interruption of construction sites in Quebec will have lasted only 34 days), the health measures imposed on construction sites will have had a significant impact on the conduct of projects in 2020.
In addition, several important legislative changes, whether related to COVID-19 or not, have taken place or have been initiated in 2020. Several of these legislative changes will have a significant impact on the construction industry in 2021.
In this period of reflection and projections, Cotney Canada's lawyers have prepared some legal forecasts for the Quebec construction and roofing industry in 2021.
- The impacts of COVID-19 will continue to be felt
Perhaps the most obvious prediction is that the consequences of COVID-19 will continue to reverberate well beyond December 31. Indeed, although the year 2020 is coming to an end, the pandemic shows no signs of slowing down. We need only look at the recent decisions of the Quebec government in connection with the Christmas celebrations to see that the virus continues to spread and claim victims. Thus, although the construction sector has once again been spared the closures announced by the government, it is essential that employers and workers remain vigilant and continue to rigorously apply public health recommendations.
In this regard, it should be noted that the Occupational Health and Safety Act (OHSA) requires contractors and prime contractors to take the necessary measures to protect the health and ensure the safety and physical integrity of construction workers, and that CNESST has published a guide to occupational health standards for the construction sector, which sets out the measures to be taken by contractors to limit the spread of COVID-19. It would be prudent to revise this guide again, upon return from vacation.
As for the arrival of the vaccine in Quebec, although it may be a source of hope for many, it should be kept in mind that it could still be a long time before the majority of the population is vaccinated. Furthermore, even if the vaccine were available to everyone, it would be surprising if employers could require their employees to be vaccinated before coming to work. Well-established legal principles, such as a person's fundamental right to bodily integrity or consent to medical care, make it difficult to determine whether it is possible to require an employee to be vaccinated. Some workplaces, where the risk of transmission to vulnerable persons such as the elderly or sick is high, may benefit from an exception to this principle, arguing that vaccination is a bona fide occupational requirement. However, it is unlikely that construction companies would be able to benefit from this exception.
Thus, pending a lull in the COVID-19 storm, roofing contractors will have to continue to deal with the health measures imposed by public authorities for some time to come, in 2021.
- A number of public infrastructure projects will be launched
Although unfortunate overall, the economic crisis resulting from the pandemic may have positive repercussions for some communities in 2021. Construction would undoubtedly be one of those environments, as evidenced by the Act respecting the acceleration of certain infrastructure projects, adopted by the National Assembly on December 10, 2020. This Act provides for the accelerated start-up of 181 public infrastructure projects, including schools, seniors' homes, hospitals and public transit infrastructure throughout Quebec. The purpose of getting these projects underway is to make construction the spearhead of Québec's economic recovery by getting a myriad of construction stakeholders working.
Moreover, section 66 of the bill adopted on December 10, 2020 will allow all infrastructure projects implemented by an organization subject to the Act respecting contracts of public bodies to benefit from a mandatory payment schedule and an effective dispute resolution mechanism. As such, the implementation of these projects will potentially have the collateral effect of fuelling debate on the need for framework legislation establishing the prompt payment of construction companies, as was the case in Ontario earlier this year.
Paradoxically, the simultaneous start-up of several major construction projects may have the adverse effect of exacerbating the pressure already present on employers due to the labour shortage that the construction industry has been experiencing for several years now. Fortunately, regulatory changes will have the effect of countering this shortage.
- Regulatory changes will be considered to address labour shortages in the construction industry
Long before the arrival of COVID-19, construction employers were already facing unprecedented labour shortages. In response to this shortage, and in anticipation of the high demand that will result from the acceleration of several public infrastructure projects, the Board of Directors of the Commission de la construction du Québec (CCQ) is proposing regulatory amendments to the Regulation respecting the issuance of competency certificates and the Regulation respecting vocational training for the construction industry workforce. This draft amendment proposes the implementation of eight relief measures, namely:
- Issuing temporary Certificates of Qualifications-Apprenticeship to full-time students enrolled in construction training programs;
- Issuing an Apprenticeship Certificate of Qualification to anyone who submits a relevant record of work experience recognition;
- Access to the construction industry for holders of a certificate of completion of professional or technical studies leading to the practice of surveying instrument technician, blaster/driller or scuba diver (professional diver);
- Employers obtaining two exemptions for “children of employers” instead of one;
- Apprentices performing all of the tasks performed by a journeyperson in the trade;
- Admission to the Trades/Specialty Qualification Examination upon completion of 85% of an apprentice's apprenticeship;
- Recognition of hours of initial training for entry into a trade at the rate of 1.5 hours for every hour of completed training required to obtain this recognition;
- Allowing an employer, on a construction site, to employ one additional apprentice per journeyperson for each additional apprentice in the final period of apprenticeship.
These proposals were published in the Gazette Officielle du Québec on December 16 and will be subject to comments and proposals for a period of 45 days.
In conclusion, although it is difficult to predict with certainty the legal developments that will influence the construction industry in the coming year, it is clear that the profound disruptions we experienced in 2020 will continue to resonate in 2021. It will therefore be essential for construction contractors to stay abreast of the various developments and ensure that they adapt their practices to the major changes taking place.
Cotney Canada's team of lawyers specializes in construction law and closely monitors the evolution of trends and changes in legislation that could have an impact on its clients. If you have any questions, please do not hesitate to contact one of our construction lawyers.
About the author: Mr. Samuel St-Jean is an attorney in the Montreal office of Cotney Construction Law, LLP. Mr. St-Jean practices primarily in civil and commercial litigation, including construction law, injunctions, commercial and residential leasing, and shareholder disputes. He also assists several small and medium-sized businesses in corporate law, in addition to drafting and reviewing contracts of enterprise or service contracts. Contact: email@example.com.