Michael Watts, Lawrence E. Ritchie, James R. Brown, Michael Fekete, Julien Ranger, Susan Newell, Marty Putyra, Mark Longo, Patrick Sullivan, Paula Olexiuk, Carson Wetter
Mar 24, 2020
Last updated April 5, 2020
For further information on the changes below, please contact one of the authors above or any member of our Health Industry or Corporate Governance Groups.
As we previously wrote about here, in response to the COVID-19 pandemic, provincial governments across Canada have declared states of emergency and/or states of public health emergency. These declarations confer powers upon provincial governments to make out-of-the-ordinary orders. Under these orders, all provinces have enacted restrictions that have closed public gathering spaces or instituted physical distancing requirements for businesses that continue to operate.
Several provinces have now enacted orders or regulations expanding these closure orders and requiring the closing of “non-essential” businesses. The classification of a business activity or service as “essential” or “non-essential” will vary from jurisdiction to jurisdiction and it may be the case that a particular business is deemed to fit the criteria to be considered “essential” in one province and not in another. At least one province has identified “essential” businesses without requiring the closure of all “non-essential” businesses.
In this Update, we (i) review the essential service announcements made to date as revised from time to time, (ii) recommend next steps for organizations to consider going forward, and (iii) review potential travel restrictions that could be implemented within Canada in connection with business closures. It is critical for organizations to continuously monitor government announcements as well as the regulations and orders underpinning these evolving provincial responses and seek legal counsel where appropriate; there have been ongoing refinements to the provincial lists of designated essential businesses and the interpretation of what constitutes an essential business, with differences between each of the provinces.
Overview of “Essential” or “Allowable” Businesses
On March 17, 2020, the government of Ontario made an order declaring an emergency under section 7.0.1(1) of the Emergency Management and Civil Protection Act (the “EMCPA”) in response to COVID-19, allowing the government to exercise sweeping powers to respond to the emergency. On March 23, 2020, the government of Ontario announced the mandatory closure of all non-essential workplaces for an initial 14-day period, effective Tuesday, March 24, 2020 at 11:59 p.m. The order requiring the temporary closure of places of non-essential business (the “Initial Ontario Order”) was made pursuant to s. 7.02(4) of the EMCPA and is set out in Regulation 82/20 available here.
On April 3, 2020, the government of Ontario issued an order further reducing and refining the list of businesses classified as essential and ordering more workplaces to close (the “Amending Ontario Order”, collectively with the Initial Ontario Order, the “Ontario Order”), which is available here. Businesses not exempt by the Amending Ontario Order must close effective Saturday April 4, 2020 at 11:59 p.m. for a 14-day period. The Amending Ontario Order also now explicitly recognizes the paramountcy of employer duties under the Occupational Health and Safety Act (the “OHSA”) by amending the preamble in the Amending Ontario Order to read as follows:
Whereas the supply chain with respect to essential goods, services and resources should continue to function to the full extent possible, subject to the Occupational Health and Safety Act and to the advice and recommendations of public health officials, including their recommendations about the importance of physical distancing;
The EMCPA provides that in the event of a conflict between the OHSA and the EMCPA or an order made under subsection 7.0.2(4) of the EMCPA (such as the Ontario Order), the OHSA or a regulation thereunder prevails. Therefore, it is important for employers to understand that despite the declaration of a state of emergency and issuance of orders under the EMCPA in Ontario, the statutory duty to take every reasonable precaution to protect their workers remains paramount. As highlighted in the litigation stemming from the 2003 SARS outbreak, there is a unique tension between a government’s overarching public duty of care owed to the public at large and an employer’s private duty of care to its employees.
Under the Initial Ontario Order, the definition of “essential business” included 74 categories of businesses. This list has now been consolidated to 44 categories of business under the Amending Ontario Order, reflecting refinements and additional restrictions. The Ontario Order specifies that these businesses “should continue to function to the full extent possible, subject to the advice and recommendations of public health officials, including their recommendations about the importance of physical distancing”. However, the Ontario Order does not require that these businesses stay open. The specified essential business categories under the Amending Ontario Order fall under the following headings (for more specific highlights of the changes made by the Amending Ontario Order please see the corresponding footnote):
- agriculture and food production
- community services
- financial services
- health and social services
- resources and energy
- services restricted to alternative methods of sale except in exceptional circumstances
- supply chains
- telecommunications and information technology infrastructure/service providers
- transportation services
Categories no longer on the list include communications industry, environmental services, retail and wholesaling, justice sector, business regulators and inspectors and other businesses. Other category titles have been modified, such as “manufacturing and production”, which is now simply “manufacturing”. Notwithstanding the reconsideration of the categories, certain businesses may fall within the “essential” designation and be permitted to operate even if the previously overarching category is no longer included. For this reason, businesses which had previously been operating as “essential” are encouraged to look beyond the organizational revision of the list to the underlying regulation.
For example, “telecommunications and IT infrastructure/service providers” now includes “newspapers, radio and television broadcasting”, previously included under the category “communications industry”, and certain services previously listed under “environmental services” may now fall within “community services” and still be exempt.
Similarly, explicit reference to “cannabis producers” in the Initial Ontario Order has been removed yet their activities may fall within other categories such as “agriculture and food production” and “health care and social services” in the Amending Ontario Order.
The Ontario Order does not preclude the provision of work and services by non-essential businesses, provided that such provision is made either online, by telephone or other remote means or by mail, delivery or making goods available for pick-up.
In addition, nothing in the Ontario Order precludes operations or delivery of services by any government or any person or publicly-funded agency or organization that delivers or supports government operations and services, including operations and services of the health care sector, regardless of whether or not they are listed in the Ontario Order as an essential business.
Despite the mandated temporary closure of non-essential businesses, temporary access to a closed place of business of a non-essential business is authorized, unless otherwise prohibited by law, for the purposes of:
(a) performing work at the place of business in order to comply with any applicable law;
(b) allowing for inspections, maintenance and repairs to be carried out at the place of business;
(c) allowing for security services to be provided at the place of business; and
(d) attending at the place of business temporarily,
(i) to deal with other critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely; or
(ii) to access materials, goods or supplies that may be necessary for the business to be operated remotely.
On March 25, 2020, the government of Ontario announced that it launched a toll-free line (1-888-444-3659) to provide support to Ontario businesses who have questions about the Ontario Order to close places of non-essential businesses or how emergency measures can impact their business or employment.
On March 13, 2020, the government of Québec adopted an Order in Council that declared a health emergency throughout Québec. Subsequently, the government of Québec has announced that the closing of all “non-essential” stores and services will be ordered as of March 25, 2020 until April 13, 2020.
The list of the essential services and commercial activities, available here, was expanded after its initial publication. As of the date of this bulletin, the list includes specific criteria under the following headings:
- Banking, financial and other services
- Building maintenance and upkeep services
- Construction sector services
- Government services and other priority activities
- Priority health services and social services
- Priority manufacturing activities
- Priority commercial enterprises
- Priority services in the field of transportation and logistics
- Maintenance and operation of strategic infrastructure
- Media and telecommunications services
- Public security services
The Québec government has also noted that all businesses can always engage in teleworking and e-commerce.
In contrast to Ontario, the Québec government also has stated that if a person’s particular activity is not listed as an essential service but they believe it is essential or is an essential service or function providing entity, such person may apply for designation as an essential company.
Québec has also launched an online form for individuals seeking further information regarding designation as an essential business, available here.
On March 18, 2020, a provincial state of emergency was declared in British Columbia under the Emergency Program Act by the Minister of Public Safety and Solicitor General.
Emergency Management BC, after engaging in consultations that included the Provincial Health Officer, identified daily services considered essential to preserving life, health, public safety, and basic societal functions. These “essential services”, which are encouraged to remain open, are categorized under the following headings:
- health and health services
- law enforcement, public safety, first responders, and emergency response personnel
- vulnerable population service providers
- critical infrastructure service providers
- food and agriculture service providers
- transportation, infrastructure and manufacturing
- communications, information sharing, and information technology
- non-health essential service providers
Unlike Ontario, Québec, Alberta, Saskatchewan and Manitoba, which have mandated the closure of any type of business not deemed “essential” or “allowable”, British Columbia does not mandate such closures across-the-board. A business or service that is not an “essential service” may remain open in British Columbia, provided that such business or service can comply with the recommendations of the Public Health Officer. However, such businesses may be ordered to close by a specific order of the Provincial Health Officer (e.g., on March 20, 2020 the Provincial Health Officer ordered certain holders of liquor licences to close if they did not also serve meals).
On March 17, 2020, Alberta declared a State of Emergency. On March 27, 2020, the Alberta Chief Medical Officer of Health issued Order 07-2020 pursuant to section 29(2.1) of the Public Health Act mandating the closure of non-essential places of business at locations accessible to the public, effective immediately.
Under Order 07-2020, such non-essential places of business include any place of business offering or providing non-essential health services, personal services, wellness services (including but not limited to massage therapy services), and any retail stores or business offering providing only non-essential goods or services.
Under Order 07-2020, an “essential service” is a service considered critical to preserving life, health, public safety and basic societal functioning. The government of Alberta has announced a list of essential services, available here, which sets out in further detail which businesses can continue to provide services at locations accessible to the public. In order to do so, businesses must have proper risk mitigation measures in place, such as sanitation stations and appropriate distancing between customers. The businesses that can continue to operate as essential services are broadly defined and cover key industries such as energy, construction, transportation, industrial, agriculture, telecommunications and health care, but all workplaces can only continue to have more than 15 workers on a worksite as long as they maintain public health measures, including two metre social distancing, hygiene enforcement and processes that ensure that any person who is ill does not attend these spaces. The list of essential services is organized under the following categories:
- health, medical and public health
- public safety and security
- food and shelter
- energy and utilities
- petroleum, natural gas, and coal
- agricultural and horticultural
- financial services
- information and telecommunications
- public administration and government
- other essential services.
The Chief Medical Officer of Health may also exempt a person or classes of persons from the application of Order 07-2020.
On March 25, 2020, the government of Saskatchewan announced that effective March 26, 2020, non-allowable business services will be unable to provide public-facing services. Similar to both Ontario and Québec, while closure of non-allowable business services prevents certain businesses from providing public facing services, it does not preclude online retailing or providing pick-up or delivery services.
According to the Saskatchewan government announcement, the list of “businesses of critical public services and business services that will be allowed to continue operating during the COVID-19 response and maintaining critical services to the public and industry to prevent supply chain disruption” includes:
- health care and public health workers
- law enforcement, public safety and first responders
- production, processing and manufacturing and the supporting supply chains
- transportation and logistics
- government and community services
- media and telecommunications
- construction including maintenance and repair
- select retail services
- banking and financial services.
On March 20, 2020, Manitoba declared a state of emergency under the Emergency Measures Act. On March 30, 2020, pursuant to subsection 67(3) of the Public Health Act, the Minister of Health, Seniors and Active Living issued an order approving the special measures being taken by the Chief Provincial Public Health Officer in response to the COVID-19 pandemic (the “Manitoba Order”).
The Manitoba Order restricts operations of non-critical businesses in order to reduce the spread of COVID-19. A business that is not listed in the schedule to the Manitoba Order (the “Schedule”, available here) must close effective April 1, 2020 until April 14, 2020. A business listed in the Schedule may remain open, however if the business allows members of the public to attend at the place of business, the operator of the business must implement measures to ensure that persons attending the place of business are reasonably able to maintain a separation of at least two metres from other persons who are attending the business. The Schedule lists businesses organized under the following categories:
- supply chains
- retail and wholesale
- institutional, residential, commercial and industrial maintenance
- telecommunications and information technology
- communications industries
- manufacturing and production
- agriculture and food production
- natural resources
- environmental services
- utilities and public works
- health care, seniors care and social services
- justice sector
- professional services
- other businesses
However, temporary access to a closed place of business that is not listed in the Schedule is authorized, unless otherwise prohibited by an applicable law, for any of the following purposes:
- performing work at the place of business in order to comply with any applicable law
- allowing for inspections, maintenance and repairs to be carried out at the place of business
- allowing for security services to be provided at the place of business
- attending that the place of business on a temporary basis to deal with critical matters relating to the closure of the place of business if those matters cannot be addressed remotely, or to access goods, materials or supplies that may be needed for the business to be operated remotely.
The Manitoba Order explicitly does not prevent a business not listed in the Schedule from operating remotely without attending at the place of the business for the purpose of providing goods by delivery or making goods available for pick-up; or providing services online, by telephone or other remote means. Further, the Manitoba Order permits the operations or the delivery of services by the government of Canada, the government of Manitoba, any municipality and any person or publicly funded agency, organization or authority that delivers or supports government operations and services including health care operations and services.
Newfoundland & Labrador
On March 23, 2020, the Chief Medical Officer of Health of Newfoundland & Labrador issued a Special Measures Order pursuant to section 28 of the Public Health Protection and Promotion Act. Similar to other provinces, under this order businesses such as gyms, cinemas, arenas, personal services establishments (including spas, salons, tattooing, etc.) have been ordered to close immediately. Retail stores have been mandated closed as well, unless those stores provide goods or services “essential to the life, health or personal safety of individuals and animals” such as food, pharmaceutical products, medicine and medical devices, personal hygiene products, cleaning products, baby and child products, fuel, computer and cellphone service and repair, electronic and office supplies, hardware supplies and pet and animal supplies. Businesses that hold a licence under the Liquor Control Act whose primary purpose is the consumption of beer, wine or spirts and that do not otherwise qualify for an exception under the order must close as well.
At this point, non-essential business closures have not been implemented in other provinces, though provincial governments generally have the ability to issue these orders under their applicable emergency statutes. In addition, across Canada there have been government mandated closures of at least some of the more public-facing businesses that are generally accepted to present a higher risk, such as restaurants and personal service settings. Prince Edward Island has also published a list of essential and non-essential businesses (available here) but has not mandated the closure of all non-essential businesses.
As of the date of this update, the federal government has not invoked the Emergencies Act and the powers under it. The Emergencies Act gives the government “extraordinary powers” to ensure the safety and security of Canadians during a national emergency. These powers could include business closures, regulating or prohibiting travel, evacuations, and imposing fines and jail terms to anyone who contravenes the orders.
For those businesses that seek to fit within the “essential business” exemptions, we suggest the following:
- Consider with your advisors whether all or portions of your business may fit into the available exemptions in the applicable jurisdictions in which you operate to qualify as “essential”, as they are amended and refined from time to time. Consider also whether your business should operate in the circumstances (and whether operating online or through telecommerce is a feasible option) and how to appropriately scale your business prior to the effective time of the orders. As part of your considerations, have regard to all relevant factors including the ability to set and implement protocols to keep employees safe.
- Make a record of the analysis above and the plan for execution, as it may be amended from time to time to reflect ongoing changes, new and amended orders and/or guidance.
- Identify the team that will be operating the business operations (if not the whole workforce), the location from which operations will be undertaken, hours of operation, what will happen during hours the business is not open and how your business will handle partial closures of certain aspects of operations or closures in other jurisdictions (to the extent a portion of your operations are deemed “essential” or your operations are deemed “essential” in some but not all of the jurisdictions in which it operates).
- Communicate your strategy throughout the organization, in an appropriate manner to inform your employees and other stakeholders of the approach. In this uncertain time, information flows are important to maintaining employee engagement. For more suggestions on employee matters, see our employer guide here.
- To assist your employees with attending at your business premises, provide them with a letter from the organization and ensure they have proper credentials to confirm to property managers or authorities that it is appropriate to allow them to have access to and operate in the premises.
- Continue to implement social and physical distancing practices as part of your on-going operations
Restrictions on travel in connection with closures of non-essential businesses
Pursuant to s. 7.0.2(4) of the EMCPA, the government of Ontario may, among other things, regulate or prohibit travel or movement to, from or within any specified area. Unlike measures implemented in California and Illinois contemporaneously with the closure of non-essential businesses, most Provinces have not yet announced restrictions on travel or movement within or into/out of the Province.
If restrictions on travel are implemented within or between Canadian provinces, there will be additional considerations for businesses that are determined to be “essential” and remain open in accordance with applicable laws in such jurisdiction. At such time it would be prudent for organizations to provide their workers with a letter from the organization describing the essential business, the worker’s role in the business and a phone number of a person at the organization who can verify the worker’s need to travel in order to provide the essential services.
Stay informed and communicate
As the response to COVID-19 is evolving rapidly, from a business continuity perspective, we encourage everyone to continue to stay informed as new developments arise and communicate to your employees customers and other stakeholders. We have centralized relevant content on our “Coronavirus: Navigating legal implications and business impacts” client communication page.
 RSO 1990, c E9. [EMCPA]
 O Reg 82/20. [Ontario Regulation]
 O Reg 119/20. [Ontario Regulation 2]
 R.S.O. 1990, c. O.1 [OHSA].
 EMCPA, supra note 2 at section 7.2(8).
 While health care sector specific, please consider reviewing our previous Osler Update regarding the unique tension between the EMCPA and the OHSA, available here as it provides important analysis regarding an employer’s paramount obligation to employees.
 For a closer look at lessons learned from SARS and SARS-related litigation, please see our previous Osler Update, available here.
 Ibid, at schedule 2.
 The Amending Ontario Order limits the type of construction allowed to continue. In particular, industrial construction activity allowed to continue has been restricted to a limited list of critical activity. Residential construction projects must fall into one of three categories in order to continue operations – principally that permits have already been issuer or work already commenced. Please see section 29 and 30 of Schedule 2 to the Amending Ontario Order for full details.
 Community services includes professional and social services that support the legal and justice system, and government services.
 “Financial services” is now defined as businesses that provide the following financial services: capital markets and related securities trading and advisory services, banking/credit union activities including credit intermediation, insurance, land registration services, real estate agent services, pension and benefits payment services and financial services including payroll and payment processing and accounting and tax services.
 “Maintenance” includes 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 Amending Ontario Order modifies the category of “Manufacturing and Production” to be “Manufacturing” and now adds the stipulation that such businesses are essential “regardless of whether those other manufacturers are inside or outside of Ontario”.
 Businesses that provide products and services that support research activities are no longer included as essential under the Amending Ontario Order.
 The Amending Ontario Order now modifies the previous category of “Food Services and Accommodations” to “Food”, and modifies the category as those businesses that primarily sell food, beverages and consumer products necessary to maintain households and businesses. Restaurants are still permitted to operate take-out, drive-through and delivery service only. Beer and wine and liquor stores may remain open as well, though Ontario has removed explicit reference to cannabis retailers.
 Includes pharmacies, gas stations, laundromats and drycleaners, security services, vehicle and equipment repairs, courier/postal/shipping/delivery services, veterinary services (urgent care only), home child care services, funeral and related services.
 Such services are stores that sell hardware products, vehicle parts and supplies, pet and animal supplies, office supplies and computer products including computer repairs and safety supplies, and that provide them to the customer only through an alternative method of sale such as curb side pick-up or delivery, except in exceptional circumstances. . With respect to accommodations, hotels, motels, shared rental units and similar facilities, including student residences may continue to operate however, Schedule 3, section 3 of the Amending Ontario Order mandates no short term rentals except to individuals in need of housing during the emergency. Open houses are now prohibited as well under section 4 of Schedule 3 to the Amending Ontario Order.
 In the Amending Ontario Order, essential “supply chains” businesses now include those that supply businesses or services that have been declared essential in a jurisdiction outside of Ontario.
 Ontario Regulation 2, supra note 4.
 Ontario Regulation, supra note 3 at section 1(3).
 Ontario Regulation, supra note 3 at section 1(5).
 Ibid, at section 1(2).
 The Government of Québec has included “legal services” and courts of law and administrative tribunals in cases deemed urgent under such essential government services.
 For the purposes of Order 07-2020, a “non-essential health service” includes any service that is generally done to protect, promote or maintain health of an individual and where an interruption in the provision of servicees will not result in an individual’s life, health or safety being immediately endangered. Despite this, health professionals can offer or provide non-essential health services at a place of business only if the services are deemed urgent by the health professional providing the service [s 7 - 8, Alberta Order].
 For the purposes of Order 07-2020, a “personal service” means activities such as puncturing, cutting, shaving, exfoliating, applying pressure, inserting/implanting/attaching or removing objects, applying suction, using energy-emitting equipment, removing, styling, applying or injecting cosmetic products, performed in or to a person’s skin, hair, nails or teeth or other parts of the body of a person, for the primary purpose of enhancing, preserving or altering the person’s appearance [s 10 Alberta Order].
 Alberta Order, supra note 32 at s 6.
 Alberta Order, supra note 32 at s 9.
 Under section 11 of Order 07-2020, risk mitigation measures for any place of business that is still permitted to operate at a location accessible to the public include the requirement to provide for rapid response if a worker or member of the public develops symptoms of illness while at the place of business, and maintain high levels of workplace and worker hygiene.
 “other essential services” includes professional services such as lawyers and paralegals, engineers, accountants, translators.
 Alberta Order, supra note 32 at section 13.
 Ibid at section 3(1). Note that for the purposes of the Manitoba Order and Schedule, “business” includes a trade, industry, service, profession or occupation, whether operated on a commercial or not-for-profit basis.
 Ibid at section 3(2).
 Ibid at section 3(3).
 Ibid at section 3(4). The Manitoba order also addresses health professionals under section 5, stating that a person who is a member of the College of Physicians and Surgeons of Manitoba, the College of Registered Nurses of Manitoba, the College of Licensed Practical Nurses of Manitoba or the College of Midwives of Manitoba may “practise their profession without restriction”. Any other health professional who is authorized to practise their profession may provide services to, or on behalf of, (a) the government of Canada, the government of Manitoba or a municipality, (b) any person or publicly funded agency, organization or authority that delivers or supports government operations and services, including health care operations and services; and (c) any business that is listed in the Schedule. In addition, any authorized health professional may provide urgent or emergent care.
 EMCPA, supra note 2 at section 7.02(4).
 On March 19, 2020, the Governor of California issued Executive Order N-33-20 to make effective an Order of the State Public Health Officer instructing California residents to stay home except for essential activities and to not travel across state lines unless it is for one of the 16 “Critical Infrastructure Sectors”; see Executive Department, State of California, “Proclamation of a State of Emergency” (March 4, 2020) State of California, available here.
 On March 20, 2020, the Governor of Illinois declared a state of emergency closing all businesses in the state except “Essential Businesses and Operations” (the “Illinois Order”); for further detail see: State of Illinois, Executive Department, Executive Order 2020-10 (March 20, 2020), available here. The Illinois Order provides that individuals may leave their residence only to perform “Essential Activities” including to perform work providing products and services at such Essential Businesses or Operations.