COVID-19

April 9, 2020 Published by CCI National - By Davidson Houle Allen LLP

UPDATE – COVID-19: Are Lawn Maintenance Services Essential in Ontario?

As such, we’ve updated our blog (with new information highlighted in red) to help property mangers and Boards assess whether their landscaping work should proceed.

UPDATE – April 9, 2020: We originally posted the blog below on April 7, 2020 to respond to many questions we received about landscaping services. Since then we have received updated information from property managers reporting on their experience working with contractors and the City of Ottawa to assess whether landscaping services are essential right now.

The confusion on this topic arises from the fact that landscaping services are not specifically included in the Provincial Government’s list of essential services, and as a result it’s not clear whether or not such services are to be considered essential. Landscaping services in condominiums could be considered essential where the service is “strictly necessary for the safety, security, sanitation, or essential operation of the condominium”.

As such, we’ve updated our blog (with new information highlighted in red) to help property mangers and Boards assess whether their landscaping work should proceed.

We have received several interesting queries from Boards and Property Managers on our blog about the province’s revised List of Essential Services, which came into effect on April 5, 2020. A recurring question is whether gardening and lawn care activities qualify as “essential services” in condominiums.

The starting point is that the Provincial Government does not consider regular landscaping services to be essential right now and all such work should be postponed until further notice, unless the Board is confident that their work is “strictly necessary” to address a dangerous or urgent condition. This is in line with the Landscape Association of Ontario’s position available here and feedback received from the City of Ottawa’s bylaw department. The point is that even if the non-essential landscaping work could be completed in accordance with social distancing protocols, the current recommendations are for residents to stay home unless their work is strictly necessary.

Assessing whether landscaping services can proceed means considering whether they are strictly necessary to manage and maintain the safety, security, sanitation, and essential operation of the condominium property. In our view, condominium Boards and landscape contractors must examine this issue on a case-by-case basis, taking into account the specific situation of the condominium. A general answer applicable to all scenarios is not possible. The decision to proceed with lawn care activities will vary from one condominium to another and can also change over time and as the COVID-19 crisis continues to evolve. With that said, we offer the following thoughts:

• We are aware that many landscape and horticulture contractors have limited their services to essential cleaning. We therefore advise condominium Boards to regularly communicate with their landscape contractors and to obtain their contractor’s input before proceeding with any lawn maintenance activities.

• A full Spring cleanup is not likely considered strictly necessary right now. However, we offer the following examples of landscaping services that could likely be considered necessary where they relate to preventing a dangerous condition:

1. Picking up debris and fallen branches that pose a safety risk after the Winter season;
2. Trimming or removing dead trees or dangerous branches; and
3. Street sweeping (which helps prevent storm sewer backups);

[Please note: this is obviously not an exhaustive list. These are examples we’ve provided to help Board’s assess whether their circumstances might be considered strictly essential right now].

• While some condominiums and contractors may not consider lawn maintenance services (such as cutting grass, etc) to be necessary or essential at present, this situation could also change, particularly if the restrictions on services continue (as expected) over the coming weeks, and the condition of the lawns and gardens worsen over time.

• The recent List of Essential Services uses the terms “strictly necessary” instead of “essential”, which in our view is probably a more restrictive criterion. This suggests that only work that is considered truly urgent should be undertaken. But as time goes by, many Boards and landscape contractors may determine that proper lawn care is more and more urgent.

• Condominium employees and contractors who proceed with lawn maintenance work must be able to justify why they consider the activity to be “essential”, if queried by law enforcement officials. Consequently, condominium corporations could consider preparing a list of individual services they consider essential (and mention why for each service) and provide that list to employees and contractors who are working on site. Condominium corporations can also connect with local police and by-law enforcement to see what approach they are taking in terms of enforcement.

• If a condominium does decide to proceed with lawn maintenance work, it should ensure that a COVID-19 protocol is in place (see our previous blog on this topic) and social distancing is adhered to by all employees and contractors working on site (g. avoiding gatherings in the common elements, only allowing a limited number of people in the elevators (if access to the elevators is necessary), ensuring that workers on site refrain from touching each other’s tools, etc.)

We will be sure to bring you the most up-to date information as the situation surrounding COVID-19 continues to evolve.