How Does the New Order Restricting “Essential Services” Affect Your Operations?

This past week the
Province of Ontario revised its “Essential Services” order and
imposed further restrictions on various sectors of the Province’s economy. As
far as multi-res housing goes, s. 20 of the Essential Services Order uses what
appears to be narrow language, but which, in our view, authorizes most
continuing operations of multi-res properties. Multi-res operators will have to
make some decisions about what work can continue and what work may have to
cease. A key factor in those decisions should be consideration of what risks
ongoing operations may pose for the continuing spread of COVID-19, balanced
against compliance with statutory obligations relative to health, safety,
maintenance and repair. What we have outlined below are the considerations
which may inform your operational decisions relative to building operations.

The new Essential
Services Order states that the following operations are Essential Services:

20. Maintenance, repair
and property management services strictly necessary to manage and maintain the
safety, security, sanitation and essential operation of institutional,
commercial, industrial and residential properties and buildings.

The language as it
relates to “maintenance, repair and property management services necessary
to manage and maintain” the “essential operation
of”…”residential properties and buildings” is actually very
broad and open to interpretation.

In our view, most
current building operations, including suite turnover and ongoing capital
projects, readily fall within the scope of the Essential Services Order. Rental
Housing in most urban centres in Ontario continues to be in short supply and
when a unit is vacant, its remediation and availability to meet demand is
justifiably necessary and therefore part of the essential operation of
multi-res properties. The same goes for capital work in progress where that
work is undertaken to keep the building and rental units in it “…in a good state of repair and fit for habitation and for complying with
health, safety, housing and maintenance standards.” (s. 20
RTA).   Your operations managers and building consultants should be
able to assess whether the work meets the test set out in s. 20 RTA and the
related tests set out in municipal Property Standards by-laws and, in the city
of Toronto, the Municipal Code. There are also Fire, Building and Electrical
Codes, and environmental requirements, all of which impose continuing
operational obligations on landlords.

Regardless of the
foregoing, in making decisions about COVID-19 risks and “routine”
maintenance and repair in occupied suites in particular, it is necessary to
prioritize what may be “strictly necessary”. Preparing a unit for
turnover is not an issue; however, maintenance requests from occupied units
require scrutiny to prioritize whether your staff or a contractor should enter.
A loose tile or an electrical outlet not working are, in our view, maintenance
items which may be deferred in light of both the provincial Order and COVID-19;
however, an inoperable stove or refrigerator must be repaired. Annual fire
alarm testing (consider checking, in writing, with your fire service and get a
written response) may be deferred or may be required for compliance with Fire
Code obligations. Work such as landscaping, common area cleaning, and even
capital work necessary to comply with health, safety and building standards
are, in our view, within the scope of the order. Note that with the exception
of laundry rooms, common area amenities should be closed (there may be a rare Human
Rights Code issue but that can be dealt with on a case-by-case basis).

You can expect pushback
from some residents when contractors are moving through hallways and perceived
as disrupting building operations, and some may point to the Provincial order
as prohibiting you from carrying out the work. Some strategic communication may
be required on your part to address resident concerns but you can expect that
some residents will contact local governmental authorities to complain.

Don’t be surprised if
there are some formal challenges from governmental authorities whose
interpretation of the Provincial Order is narrower than that set out above. In
such cases you may have to push back and assert your statutory obligation under
the RTA; property standards by-laws; and health and safety by-laws (ie: pest
control; mold removal; disinfecting and preparing units for turnover); the Occupiers’
Liability Act (to address physical safety issues); and applicable building
codes as justifying work being undertaken on site. The language of the
Essential Services Order is sufficiently broad to prevent authorities from
applying a narrow interpretation and interfering with building operations.

While there is a clear statutory mandate for
most building operations to continue, it is important to protect the health and
safety of on-site workers and building occupants. Don’t lose sight of the fact
that the overriding goal of any business operation at this time should be to
help “flatten the curve” and stop the spread of COVID-19. In making
decisions about work to be done, ensure that your contractors and staff are
informed of safety protocols and that they follow them.