Government measures in key jurisdictions 2nd edition final pages - Flipbook - Page 24
Canada
The Ontario government has also made an order under the EMCPA suspending
limitation periods and procedural time periods (the Suspension Order). The suspension
is retroactive to March 16, 2020, and continues for the duration of the emergency, for a
maximum of 90 days, unless extended by further order.
An apparent unintended consequence of the Suspension Order was its impact on the
timing of the release of statutory holdback on construction projects across Ontario.
Since the expiration dates for liens was suspended, holdback that would otherwise
have become due and payable during the suspension period could be expected to
not be released by owners until potential lien claims had expired, after the suspension
period had been lifted. This, in turn, would have significant cash flow implications for an
already suffering construction industry.
The government of Ontario has recognized the financial impact suspended lien
periods would have on contractors and subcontractors due to the inability of owners to
release holdback and has, accordingly, decided to order that the Construction Act be
exempted from the Suspension Order.
Additionally, the government of Ontario has made several orders with respect to the
closure of all non-essential businesses. The list of essential workplaces has been
reduced to 44.
Certain construction projects have been deemed essential and are exempt from the
orders. These essential construction projects include healthcare sector projects, critical
infrastructure projects, critical industrial projects, and certain residential projects that
have specific permits already granted. In addition, the government of Ontario has now
added construction projects that are due to be completed before October 4, 2020 and
that would provide additional capacity in the production, processing, manufacturing
or distribution of food, beverages or agricultural products. This added category of
essential construction projects is intended to keep key supply chains running and to
avoid food and beverage shortages.
Additional discussion on the impact on construction lien periods and construction
projects can be found here.
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Litigation
Are the courts
operating?
Most courts across Canada have adopted an essential services model and have limited
the manner and types of hearings that can proceed before them, focussing on urgent
and essential matters. Many categories of cases have been adjourned indefinitely.
However, as the pandemic has continued, there has been a gradual re-opening of
courts and increase of the categories of cases, in particular, non-urgent matters, that
can proceed. Some courts are now implementing email filing measures and holding
hearings by video or teleconference. But when the courts re-open, they are likely to
prioritize criminal cases, because of the constitutional obligation to resolve criminal
cases within a reasonable period of time. Access to the court will have to be assessed
on a court-by-court basis. Accordingly, you should consult with your legal counsel to
assess your options.
Many commercial disputes are well-suited to being resolved through arbitration.
Arbitration’s traditional advantages of greater speed, lower costs, and greater flexibility
as compared to litigation give it an even greater edge when courts are closed.
More information can be found here.
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Government measures in key jurisdictions
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