COVID-19 Updates

The Office of the Registrar created a series of FAQs to address frequently asked questions regarding fees, Admission Course, etc.

Other useful information may be found in the following links and updates:

• OAA Admission Course 
• EXAC
• CACB
• BEFA  

Last updated: April 19, 2021

The provincial government continues to revise its list of businesses permitted to open and its sector-specific restrictions.

While "Professional Services" is not explicitly listed as an essential service as it previously had been at the beginning of the pandemic back in 2020, architectural services may be provided to support design/construction projects that are permitted or deemed essential. How the changes to essential services impact your practice and active projects will depend on a number of factors. There are still many grey areas that the industry is trying to navigate and, more than ever, open and clear communication is needed when dealing with all stakeholders on all projects.

Until the government clearly indicates “Professional Services” can reopen their “place of business,” Certificate of Practice holders should be mindful of their obligations as an employer to ensure the health and safety of their employees. As such, considerations for continuing to work remotely should be made, even as province-wide restrictions ease.

Practices should think about how their place of business should adapt as restrictions are lifted or imposed, and consider what additional protocols need to be put in place to allow for safe workplaces. Practices should be mindful that restrictions will change over the course of the next couple of months. Nothing will be static; remaining flexible in the strategies your office takes will help maintain business continuity. Firms should communicate and coordinate their changes to their office changes with their clients and consultants. Staying current on the status of the emergency orders and associated restrictions is critical.

Consider the following:

• Are there compelling reasons that some/all staff need to return for the effective functioning of the business?
• If you decide to keep your physical office open, how will you adapt your space for the health and safety of employees, clients, reps, etc.?
• Do you need to adapt how you manage your projects in terms of team dynamic, collaborative online tools, etc.?
• How will the practice conduct site visits safely?
  

Here are some of the current government -provided links, which may help firms adapt their practice during the COVID-19 pandemic:

• Government of Canada: Risk mitigation tool for workplaces/businesses operating during the COVID-19 pandemic;
• Reopening Ontario: Ontario is gradually reopening businesses, services, and public spaces on a regional basis as progress is made in the fight against COVID-19; and
• Government of Ontario: Resources to prevent COVID-19 in the workplace.
  

Stop the Spread Business Information Line at 1-888-444-3659 – The province launched a toll-free line to provide support to Ontario businesses who have questions about the province's recent emergency order. Businesses with questions about closures of at-risk workplaces or how emergency measures impact their business or employment.

You can also review other key sections of the webpage, such as Practices – Personal Supervision & Direction During COVID-19 and Practices – Site Work and Authorities Having Jurisdiction.

Last update: February 17, 2021

As an employer, you have various duties, responsibilities, and obligations to ensure your employees are protected; these can be found under the following links:

• Ontario Human Rights Code,
• Occupational Health and Safety Act (OHSA)
  

The Ministry of Labour, Training, and Skills Development has added COVID-specific content, covering topics such as employment standards, workplace health and safety, and labour relations.

If you or your employees have questions about how employees' legal rights may be impacted by COVID-19, the Steps to Justice website has produced updated FAQs directly related to COVID-19, including information about changes to the Employment Standards Act and employment insurance.

The provincial government's Construction Site Health and Safety During COVID-19 webpage includes the following statement:

Under Ontario law, employers have the duty to keep workers and work sites safe and free of hazards. Workers have the right to refuse unsafe work. If health and safety concerns are not resolved internally, a worker can seek enforcement by filing a complaint with the ministry’s Health and Safety Contact Centre at 1-877-202-0008. Failure of the employer or constructor to comply with the OHSA and its regulations could result in a stop-work order upon inspection by the Ministry of Labour, Training and Skills Development.

Last updated:  January 18, 2021

Practices may have already had clients request proof of vaccination in the context of existing projects and for new ones. Such requests generally align with the client’s own vaccination mandate.

Some companies are approaching this in an informal manner, such as providing notification via email that practices should only send vaccinated employees or subconsultants to site. Others are requesting practices to sign attestations and/or provide proof of vaccination of staff attending site for work-related functions (e.g. meetings, surveys, and site review). Some are seeking to have the practice assume responsibility for all their subconsultants actions in this regard.

The OAA recommends members evaluate the business risk of signing such documents as well as contractual obligations between themselves, clients, and subconsultants. Further, the privacy of personal information and obtaining proper permission to share it is a serious concern, whether in the hands of the practice or the client.

The language on proof-of-vaccination forms is not standardized and the situation continues to evolve. Consulting with your legal counsel as it pertains to contract and employment law as well as Pro-Demnity Insurance Co. is strongly recommended. (On December 3, 2021, Pro-Dem posted its Special Bulletin, “Client Vaccination Mandates–Before You Sign on the Dotted Line,” which can be read here.)

When reviewing an attestation form, ask yourself the following questions:

1. What language is being used and what responsibility are you taking on by signing?
   
2. What is the legal authority under which the request is being made?
   
3. Has the contract been signed already?
   
4. Under which contract provision is the request being made?
   
5. Is compliance with the request something already contemplated in the contract or is this a new scope of work?
   
6. Does this fall under an “and such amendments to by-laws or policies as may from time-to-time be made” type of clause?
   
7. Are you entitled to additional compensation related to complying with the request?
   
8. Is there a less-onerous means of achieving the result desired by the client?
   
9. What does your contract say? Is this a new request? Was it in the RFP? Should you be compensated for the additional risk?
   
10. Rather than you assuming additional liability for subconsultants, could the client provide a version of any attestation form for each subconsultant to sign and submit? (Ensure the onus is on each consultant to confirm and attest to their own staff’s vaccination status. Review clauses in your subonsultant’s agreements as it pertains to vaccination status either explicitly or because of requirements passed through from your contract with the client.)
    
11. Regarding the privacy of personal information of employees and subconsultants, can you legally comply with the request without divulging personal information?
    
12. Do you need to get and retain written consent before you divulge any information required to comply with the request?
    

You may also need to coordinate and update your own practice policy of vaccination as required so teams are kept informed.

All architects are responsible for understanding their professional obligations and for seeking advice from their lawyer and insurer to understand their legal responsibilities and contractual commitments. Practices should consult the Architects Act and their contracts to fully understand the regulatory requirements and their contractual commitments for general review.

It should be noted that the means and methods undertaken to perform general review are at the sole discretion of the holder of the Certificate of Practice. It is up to the holder to determine whether the process meets the professional prescribed performance standards as set out in the Regulations. The holder will bear responsibility for the content of their reviews and should be able to illustrate that they have personally supervised and directed the work and maintained responsible control.

If it is necessary to conduct a general review, every effort must be made to take precautions to minimize the risk of spreading COVID-19. Please consult the latest public health information from the Government of Ontario. As long as construction on such projects continues, members providing general review have a responsibility to perform general review to professional standards. Refer to Regulatory Notice 6, General Review–Professional Standards for Building Code-Related Matters, and Practice Tip 5, General Review–Building Code (BC) and Non-Code-Related Matters.

It would be prudent to discuss each project with the client and the contractor, and to record any agreement to changes to the project scope or schedule in writing. This may require formal notices or change orders.

Each practice must assess the particulars of each project in light of the public health guidelines and directions being issued.

Some buildings departments may again reduce the extent of their services; if you have active projects, it is prudent to reach out and stay informed.

Here are some of the current government-provided links that will help firms adapt their practice during the COVID-19 pandemic:

• Government of Ontario: Construction site health and safety during COVID-19
• Canadian Center for Occupational Health and Safety

We also recommend you review other key sections of the webpage such as Practices – Personal Supervision and Direction During COVID-19 and Practices – Working Remotely and Re-opening Offices and
Pro-Demnity – COVID-19 Special Edition Bulletins

Last updated: January 14, 2021

Document Retention

The Limitation Periods O. Reg 73/20 order ended, and suspended time periods resumed running on September 14, 2020. The initial emergency legislation had an impact on document retention requirements, as it suspended most limitation periods, including the 15-year limitation of architect’s liability. If the 15-year period on a project was about to expire, the legislation effectively postpones the expiration until after the emergency ends. You should retain any documents related to the project until after the limitation period does expire.

Confirm with your legal counsel which projects were affected and when the limitation periods do expire.

Keep updated on the emergency legislation as orders may again be introduced that affect the limitations periods.

Last updated: January 13, 2021

Force Majeure

Force majeure is totally dependent on the wording of each contract. As a result, there is no generic advice other than to consult a lawyer about the particulars of each contract and the applicable situation.

In general, it comes down to the wording of the individual contract clauses. No blanket statement regarding COVID-19 and the application of force majeure provisions is possible. Despite the declaration of a pandemic, until it is litigated, no one can definitively say that COVID-19 meets the force majeure criteria of any particular contract or if it meets the requirements of one contract that it meets the requirements of another.

Holders of Certificates of Practice should not offer legal advice to clients. It is not for the holder to decide if delays due to COVID-19 qualify under CCDC 2 or any similar contract as a “cause beyond the Contractor’s control.” Should a holder receive any “Notice in Writing of the cause of the delay,” they should forward it to the owner with the advice to review the notice with their lawyer. It is up to the owner upon advice from their legal counsel to decide to accept the notice as valid or not.

The statements made above relating to construction contracts apply also to Client/Architect or Client/Licensed Technologist OAA agreements. Holders should seek to come to mutual agreements with their clients about any delays in the performance of their services and how the contract is affected. Any holder looking to rely on any force majeure clauses in the client/services agreement should consult a lawyer about the particulars of each contract.

The websites of many construction law firms contain articles about what lawyers understand and are saying at this time. All such information is subject to change.

Last updated: January 14, 2021

Construction Act Prompt Payment Provisions

 All the legal websites surveyed as of March 30, 2020 are of the opinion that the Construction Act prompt payment provisions and timelines are still in effect.

Last updated: January 14, 2021

Release of Statutory Holdback

 On March 20, 2020, the Ontario Government passed O. Reg. 73/20, which automatically suspends any limitation period imposed by any Ontario law for the duration of the emergency, retroactive to March 16.

Holders should process applications for release of statutory holdback in accordance with the provisions of the Construction Lien Act or Construction Act and the construction contract applicable to any project. Include in a covering letter with the certificate for payment for release of holdback, along with the usual recommendation that the client have their lawyer check that no liens have been filed, a recommendation that before the holdback is released, the client should have their lawyer advise about the impact of any new legislation or court rulings that might affect the release of the holdback.

Last updated: January 14, 2021

Repurposing Existing Buildings and Putting Up Temporary Structures

The Ontario government has made an additional emergency order under the Emergency Management and Civil Protection Act to make it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. This has resulted in changes to the application of the Building Code and the Planning Act to temporary emergency buildings. Some may be wondering about the changes and the related considerations.

The Ministry of Municipal Affairs and Housing (MMAH) has advised the OAA that the Ontario government has made an additional emergency order under the Emergency Management and Civil Protection Act to make it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. (You can read a news release here.)

The emergency order exempts temporary new facilities or existing buildings repurposed for COVID-19 related purposes such as treating patients or providing shelter from the Building Code and the need to obtain a building permit. It also exempts these facilities from some requirements of the Planning Act. In order to ensure these buildings are safe, the order also requires that an architect and a professional engineer, both of whom are licensed to practice in Ontario, have designed or taken responsibility for the design of the construction of that facility or the part of the facility, and have provided the designs to the chief building official. These facilities will also be subject to inspections from municipal building officials.

A few considerations:

1. Although the emergency order states exemption from complying with certain laws, this does not include the Architects Act, the Professional Engineers Act, or their regulations. Life safety is of paramount importance.

2. Notwithstanding application of the building code has been suspended for projects covered by this emergency order, architects are reminded of their professional obligation to safeguard life and fire safety. The professional standards of the practice of architecture in Ontario remain in effect. These facilities will be subject to inspection prior to occupancy (or at each stage of phased occupancy) and will be routinely inspected by the CBO to ensure these parameters remain in place during the lifecycle of the structures. The government has advised its intention to eventually disassemble these temporary interventions that are currently intended to address the COVID-19 pandemic.

3. The Architects Act and Regulations are explicit with respect to professional design and general review requirements in the Province of Ontario. Architects are responsible for the design of assembly occupancies; engineers are responsible for the engineering related to the design of assembly occupancies.

4. It is important to review Pro-Demnity Bulletin 6, Projects Proceeding Without a Building Permit.

MMAH has also confirmed the following, further to a stakeholder consultation session held April 24.

1. While building permits will not be issued, the CBO will be issuing an attestation following the receipt of the design in lieu of a permit. The Order does not prescribe the format or content of the attestation. This will be at the discretion of the CBO.

2. The Order does not prescribe the standard approach that will be taken in regard to the CBO’s inspection reports. This is to say the extent of the content and the format is at the discretion of the CBO. Not withstanding the building code is suspended, building officials will rely on definition of “unsafe building” as stated in Section 15.9 the Building Code Act 1992 to assess these temporary interventions.

3. The CBO will continue to rely on the general review reports issued by the architect and professional engineer in order to conduct their inspection.

MMAH has confirmed that only hospitals and government will be permitted to erect these temporary structures under the Order. These emergency projects will require professionals who understand what it takes to get projects such as health-care facilities done well and safely. The government is entrusting architects and engineers in doing their part to protect the public.

Latest updated: April 28, 2020

Succession or business continuity planning does not address solely what happens in the event of death, but also in the event of an illness, an injury, or having to devote your time to caring for an ill or injured loved one.

Every Certificate of Practice must have at least one member designated as responsible for the personal supervision and direction of the practice. Every personally supervising and directing member should have a succession plan. 

When the member appointed to personally supervise and direct the practice is unable to work, the Certificate of Practice will be cancelled, unless an alternate has already been or can be immediately appointed. Ideally, the Certificate of Practice should appoint more than one member to personally supervise and direct the practice before anyone is sidelined. The Office of the Registrar must be informed in writing by those concerned that additional members have been added as personally supervising and directing the practice.

Practices that have only one member should make arrangements with another practice to take over their projects, staff, or practice in the event of an emergency. The Office of the Registrar must be informed immediately if someone is not able to personally supervise and direct their practice. The Registrar and the Registrar’s staff will help the practice sort out what the appropriate next steps are, that will include conversations with OAA Practice Advisory Services (PAS) staff.

Staff in a firm may not continue to operate the practice without the member responsible for personally supervising and directing being present and in a position to do the work to the standard appropriate for a licensed professional.

Where the sole individual taking over the personal supervision and direction of a practice is a Licensed Technologist OAA, the terms conditions and limitations of that licence will be applied to the practice in its entirety, even where other architects work in that office.

Professional liability insurance is not available to a Certificate of Practice that is cancelled.

It is critical that every practice have a business continuity plan, not just in the time of a pandemic, but at any time.

Last updated: January 14, 2021