By: Jeffrey Murray and Erika Montisano
 
In an attempt to slow the spread of COVID-19, the provincial government has ordered the closure of all “non-essential” services, effective March 24, 2020 at 11:59 p.m. Only businesses that the government has deemed to be providing an “essential service” are permitted to remain open thereafter. This order is set to remain in effect for two weeks, unless terminated earlier or extended by Ontario’s Lieutenant Governor in Council. 
 
Ontario’s List of Essential Workplaces 
 
The provincial government has released its list of essential workplaces, which is comprised of 74 categories of businesses and services that are permitted to remain open for the duration of the emergency order. The list includes businesses across many different industries, including in supply chain, manufacturing, construction, financial activities, transportation, and health care, among others. 
 
The following is an overview of the some of the businesses that Ontario has deemed to be providing essential services and are allowed to remain open: 
  • Businesses that supply other essential businesses or essential services with support, supplies, systems or services;
  • Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers; 
  • Businesses, facilities and services that support and facilitate the two-way movement of essential goods within North American and global supply chains;
  • Retailers and wholesaling businesses such as grocery and convenience stores, pharmacies, pet stores, liquor stores, gas stations and hardware stores;
  • Certain maintenance and construction operations, including construction projects associated with the healthcare, transportation and energy sectors;
  • Construction work and services in the industrial, commercial, institutional and residential sectors;
  • Utility companies, including electricity providers, waste collection, water treatment plants, and natural gas distributors;
  • Most transportation providers;
  • All police, fire and emergency medical services;
  • Some manufacturing and production facilities, farming businesses, and businesses that support environmental management, spill clean-up and response;
  • Newspaper publishers, radio and television broadcasting, telecommunications businesses and their technical facilities and data centres;
  • Capital markets, banking activities, businesses that provide pension services, employee benefits and payroll processing;
  • Some resources suppliers, including mining operations, mineral exploration and businesses that ensure the global continuity of forestry products and petroleum;
  • Rental and leasing services, including automobile, commercial and light industrial machinery and equipment rental;
  • Mailing, shipping, courier and delivery services;
  • Professional services including lawyers, paralegals, engineers, accountants and translators;
  • Funeral services;
  • Land registration services and real estate agent services; and 
  • Most health care, seniors care and social services, including health care professionals providing emergency care, laboratories, manufacturers of pharmaceuticals and medical supplies, mental health services, and other organizations that support the provision of food, shelter, safety or protection, and/or social services and other necessities of life to economically disadvantaged and other vulnerable individuals.
Gyms and recreation centres, shopping malls, retail stores, salons and spas, theatres, sporting and concert venues and museums are some businesses that are not considered essential services. 
 
Note that, teleworking and online commerce are permitted at all times for all businesses.
 
The Quebec government has also released its list of essential services. For those businesses with operations in Quebec, the list can be viewed here. Unlike in Quebec, the Ontario government has not provided a process whereby businesses that conduct activities that are not on the list can apply for designation as an essential business. 
 
Legal Framework 
 
During a declared emergency, the authority to make an order requiring the closure of any place, business, office or other establishment is provided under section 7.0.2(4) of Ontario’s Emergency Management and Civil Protection Act (the “EMCPA”)
 
While the EMCPA does not provide that an emergency order must be codified in the form of a regulation, it does state that an order takes effect immediately upon its making. Based on the government’s other recent emergency orders surrounding the COVID-19 pandemic, it is likely that a regulation identifying the government’s official list of essential services will be issued within the coming days. All regulations made under the EMCPA can be found here.
 
Businesses that fail to comply with an emergency order are at risk of committing an offence under the EMCPA and can be liable for a fine of up to $10,000,000. Directors or officers of a corporation can also be liable for a penalty of up to $500,000 and imprisonment for a term of up to one year.  
 
Essential services businesses that remain open must still comply with Ontario’s occupational health and safety legislation with respect to their employees, which requires employers to take reasonable precautions for the protection of their workers. Amid the COVID-19 pandemic, what is reasonable will largely depend on the circumstances and characteristics of the working environment and the likelihood of a possible outbreak in the workplace. In the event of a conflict between the EMCPA or an order made thereunder and the Occupational Health and Safety Act (the “OHSA”), the OHSA will prevail.  
 
Further, an employee with a genuine, objective belief that the condition of the workplace is likely to endanger him or herself is entitled to refuse unsafe work under the OHSA’s work refusal provisions. For information on whether “essential service” workers can lawfully refuse to work in Ontario, please see our recent update here
 
Stringer LLP continues to monitor the situation closely and will provide updates on new developments as they occur.
 
For more information, please contact:
 
Jeffrey Murray at jmurray@stringerllp.com or 416-862-5525
 
Erika Montisano at emontisano@stringerllp.com or 416-849-2552