Written by Julia Schatz and Venetia Whiting
Is your business essential or a priority (or permitted to operate) under various emergency public orders made in response to the global COVID-19 pandemic? Across Canada, various provinces and territories are taking steps to further contain the spread of the novel coronavirus that causes COVID-19 by restricting the operation of non-essential or non-priority businesses. Though all such restrictions have been introduced pursuant to provincial emergency management and public health legislation, these emergency orders have important distinctions between them.
Ontario and Québec
Effective at midnight on Tuesday March 24, 2020, Ontario and Québec placed restrictions on business operations in light of COVID-19. In Ontario, the government imposed the temporary but mandatory closure of "non-essential workplaces". The province identified 19 sectors on a list of "essential" workplaces that are permitted to stay open. Québec's order provides for the "minimization of all non-priority services and activities". In Québec, "minimization" is distinct from "closure", and businesses that provide non-essential services (excluding stores) can still maintain minimal operations to ensure the resumption of their activities, "bearing in mind the directives issued by public health".
On Thursday, March 26, following on the heels of Ontario and Québec, British Columbia and Saskatchewan ordered certain types of businesses closed and released their own lists of essential services. B.C. has adopted an approach similar to that of Québec, and has ordered some types of businesses to close, identified essential services, and allowed non-essential businesses or services that have not been ordered to close to stay open if they can adapt their services and workplace to the orders and recommendations of the provincial health officer. These businesses would need to ensure that patrons maintain at least two metres of physical distance and that occupants do not total more than 50.
Saskatchewan declared a list of "critical public services and allowable business services" that can continue to operate in accordance with social distancing practices, and restricted non-allowable business services from providing public-facing services. However, as is the case in Ontario and Québec, Saskatchewan's closure expressly states that it does not prevent non-allowable businesses from expanding into e-commerce or telephone, mail or delivery services.
Newfoundland and Labrador
Newfoundland and Labrador by Special Measure Order originally made March 18, and amended on March 23, ordered the closure of various businesses, including retail stores unless those stores provide services "essential to the life, health, or personal safety of individuals and animals."
On March 27, the Alberta Government made several announcements affecting business, workplace and facility closures, including the immediate closure of all "non-essential businesses". As we anticipated, Alberta's list of essential services is more expansive than other provinces in the "petroleum, natural gas, and coal" industry. Bennett Jones has written on the Alberta announcement in detail—Alberta Releases List of Essential Services, Orders Immediate Closure of Non-Essential Businesses.
Other provinces have generally introduced more limited restrictions on business. For example, Prince Edward Island has also created lists of essential and non-essential services, though its approach appears to be less stringent. At this time, the purpose of these lists is to determine which workers are required to self-isolate—no mandatory closure or minimization order is in place. PEI's Chief Public Health Officer has recommended the closure of various businesses, including bars, restaurants, indoor play areas, theatres, and dentists and non-essential provincial government services have halted.
Provincial Authority Under Emergency Management Statutes
Provincial powers under respective emergency management statutes are far broader than the powers available to the federal government under the federal Emergencies Act. Because the provinces have primary authority over matters of public health and safety in each province, there is a higher threshold for the federal government to establish that the provinces do not have the capacity or authority to act or that the threats by COVID-19 cannot be dealt with under any other law. The federal government, at this point, appears to be seeking consensus from the provinces before taking next steps. If and when national or interprovincial action is required and the federal Emergencies Act is invoked, we anticipate that the purpose will not be to force the provincial governments to exercise exiting authority under their provincial emergency management and public health legislation. Rather, invoking the federal Emergencies Act would likely be for the purpose of nationally coordinating any requisition, use or distribution of property, or to direct certain businesses or organizations to render essential services, or to regulate the distribution and availability of essential goods, services and resources (e.g., personal protective equipment for medical personnel, medical supplies and food supplies), or to establish emergency shelters or hospitals.
Do These Emergency Closure or Restriction Orders Apply to Your Business?
We have reviewed some of these lists in more detail in previous blogs, including for Ontario on March 25, and an upcoming blog for B.C.'s list of essential businesses. We will continue to monitor these developments.
If your business is not on the list of essential workplaces, but you believe that it should be due to the nature of the business, Bennett Jones' lawyers and senior public policy advisors can assist in making effective representations to the government. In addition, if your business or organization has questions in respect of essential and non-essential business closures, please contact the authors or a member of the Bennett Jones Employment Services group. Please visit our COVID-19 Resource Centre for other COVID-19-related materials.