On March 23, 2020, provincial governments in Ontario and Quebec announced plans to order the closure of all non-essential businesses effective March 24 at 11:59 p.m. and orders have been made under applicable legislation in those provinces to give effect to these measures.
This bulletin provides an overview of the two provincial orders as announced last night. The text of the orders will be coming out later today.
The lists of exemptions in the two provinces are not the same and may require interpretation depending on your business. Your Blakes contact is ready to help you as needed.
Ontario has ordered non-essential businesses to close for the next 14 days with the possibility of extension as the situation evolves. The order was made under Ontario’s Emergency Management and Civil Protection Act (EMCPA). “Businesses” include any for-profit, non-profit or other entities providing the goods and services described in the order, which includes broad exceptions for agriculture, supply chain, manufacturing and financial services firms. The full list of businesses that are permitted to stay open in Ontario can be found here.
These include businesses essential to the supply chain; retail and wholesaling businesses; food services and accommodations; institutional, residential, commercial and industrial maintenance; telecommunications and IT infrastructure/service providers; transportation; manufacturing and production; agriculture and food production; construction; financial activities; resources; environmental services; utilities and community services; communications industries; research; health care, seniors care and social services; justice sector; and business regulators and inspectors.
The government has clarified that teleworking and online commerce are permitted, and nothing in the above order precludes businesses not on this list from providing services either online, by telephone or by mail/delivery.
Under the EMCPA, it is an offence to fail to comply with the above order, or to interfere with, or obstruct, any person in the exercise of a power or the performance of a duty conferred by the order. Maximum penalties upon conviction of an offence under the EMCPA are:
Up to C$100,000 for individuals and a term of imprisonment up to one year
Up to C$500,000 for an individual who is a director or officer of a corporation and a term of imprisonment of up to one year
Up to C$10-million for corporations.
Despite these maximum fines, the amount of the fine may be increased by an amount equal to the financial benefit received as a result of the commission of the offence. Furthermore, a person is guilty of a separate offence on each day that an offence occurs or continues.
Quebec has ordered non-essential stores and services to close until April 13, 2020 with the possibility of an extension as the situation evolves. The directive was made under Quebec’s Public Health Act. The full list of businesses and commercial activities that have been deemed “essential” in Quebec can be found here. It is a shorter list than in Ontario but it is already evolving and may continue to evolve.
This list, as announced, includes essential health care services; public security services, such as police services; essential government services; maintenance and operation of strategic infrastructure, essential manufacturing activities, such as food production and processing; the production of inputs for essential services; essential stores, such as grocery stores and other food stores, drugstores and convenience stores; media and telecommunications; banking and financial services; construction sector; building maintenance services; and essential transportation and logistics services.
If the activity of a business is not listed but a party believes that business is “essential or is an entity that provides essential services or functions”, the Quebec government has indicated that parties can request the designation of an essential enterprise by telephone (number to be established shortly).
All essential businesses continuing to operate must “comply as far as possible with the principles of social distancing.” Quebec confirmed that companies engaging in teleworking and e-commerce with employees working remotely can continue operations. Industrial complexes, especially the aluminum sector, and mining complexes must reduce their activities to a minimum but are otherwise allowed to continue to operate as essential manufacturing activities.
The Public Health Act makes it an offence (i) to fail to obey or breach an order with fines ranging from C$1,000 to C$6,000 or (ii) to assist or incite to commit such disobedience or breach, in which case the same penalty as that of the person assisted or incited applies. For a second or subsequent offence, the fine is doubled.