In an effort to curb the spread of COVID-19, the Ontario Government announced on April 3, 2020, that it will reduce the amount of businesses classified as “essential” and will order more businesses to close pursuant to its authority under the Emergency Management and Civil Protection Act (the “Act”).
The Ontario Government has mandated that those businesses that continue to operate comply with the advice, recommendations, and instructions of public health officials, including any advice, recommendations or instructions on physical / social distancing.
There are significant fines associated with a business remaining open if it is not an essential business or for breaching any aspect of the Government’s Emergency Order.
Businesses not classified as essential under Schedule 2 of the Updated Emergency Order are to close, effective as of Saturday, April 4, 2020 at 11:59pm. Affected businesses will be required to close in effect for 14 days, with the possibility of an extension.
Mathews Dinsdale is available to assist employers determine the impact of the Updated Emergency Order to their businesses.
Employers can contact the lawyer at the Firm that they normally deal with or the Firm’s dedicated COVID-19 response team at covid19help@mathewsdinsdale.com or 1.855.632.4647, 24 hours a day.
The Provincial Government has also established a “Stop the Spread” hotline, which may be able to provide assistance, at 1-888-444-3659. The hotline is available from 8:30 a.m.― 9:00 p.m. Monday to Friday and 8:30 a.m.— 5:00 p.m. Saturday and Sunday.
1. What Construction Businesses are Essential?
Schedule 2 of the Updated Emergency Order provides that the following Construction businesses or activities are exempt and can remain operational:
Construction
27. Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.
28. Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance.
29. Critical industrial construction activities required for,
a) the maintenance and operations of petrochemical plants and refineries,
b) significant industrial petrochemical projects where preliminary work has already commenced,
c) industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combatting the COVID-19 pandemic.
30. Residential construction projects where,
a) a footing permit has been granted for single family, semi-detached and townhomes
b) an above grade structural permit has been granted for condominiums, mixed use and other buildings, or
c) the project involves renovations to residential properties and construction work was started before April 4, 2020.
31. Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.
In determining the impact of the Updated Emergency Order, we suggest that you also review the following items as some of these essential activities may also include construction or other associated activities:
Supply chains
1. Businesses that supply other essential businesses or essential services within Ontario, or that supply businesses or services that have been declared essential in a jurisdiction outside of Ontario, with the support, products, supplies, systems, or services, including processing, packaging, warehousing, distribution, delivery, and maintenance necessary to operate.
Services
[…]
6. Security services for residences, businesses and other properties.
7. Vehicle and equipment repair and essential maintenance and vehicle and equipment rental services.
[…]
10. Staffing services including providing temporary help.
Maintenance
20. 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.
Manufacturing
23. Businesses that extract, manufacture, process and distribute goods, products, equipment and materials, including businesses that manufacture inputs to other manufacturers, (e.g. primary metal/ steel, blow molding, component manufacturers, chemicals, etc. that feed the end-product manufacturer), regardless of whether those other manufacturers are inside or outside of Ontario, together with businesses that support and facilitate the movement of goods within integrated North American and global supply chains.
Resources and energy
32. Businesses that provide and ensure the domestic and global continuity of supply of resources, including mining, forestry, aggregates, petroleum, petroleum by-products and chemicals.
33. Electricity generation, transmission, distribution and storage and natural gas distribution, transmission and storage.
Community services
34. Businesses that deliver or support the delivery of services including:
(i) Sewage treatment and disposal.
(iii) Potable water drinking water
(ii) Collecting, transporting, storing, processing, disposing or recycling of any type of waste.
[…]
(iv) Critical infrastructure repair and maintenance including roads, dams, bridges etc.
(v) Environmental rehabilitation, management and monitoring, and spill clean up and response.
[…]
Subsection 1(2) of Schedule 1 in the Updated Emergency Order allows for temporary access to a closed business 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.
2. What are the new social distancing and health measures under the Emergency Order?
Schedule 3 of the Updated Emergency Order provides that businesses that remain open must ensure that they act in accordance with all applicable laws, including the Occupational Health and Safety Act, and in accordance with the recommendations of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning, or disinfecting.
Links to information and guidance provided by Public Health Ontario and the Ministry of Health can be found here:
- https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novel-coronavirus/public-resources
- https://www.ontario.ca/page/2019-novel-coronavirus
Current available guidance from the Ontario Ministry of Labour, Training and Skills Development and its Chief Prevention Officer for meeting health and safety requirements at construction projects at this time can be found here:
The Ministry cautions that these guidelines are not law and do not amend existing constructor or employer requirements under sections 23 and 25 OHSA or the Regulations
Failure to implement the advice, recommendations or instructions of public health officials at the workplace could now result in charges under the Emergency Management and Civil Protection Act. Failure to follow the Ministry’s guidance for construction projects may also result in orders or charges under the OHSA.
We encourage any construction owner, employer or contractor who require OHS assistance or advice in relation to the guidelines, work refusals or other matters, to contact a member of the Mathews Dinsdale OHS Group
3. How do I determine if my business or project is “essential”?
Whether your project is covered by the list of essential businesses or projects is a matter of interpretation of the Updated Emergency Order. The Ontario Government has not provided any interpretation guides or self-assessment tools, nor are there any decisions that could be relied on as a precedent or aid to interpreting the meaning or breadth of any particular words or phrases.
If you have questions regarding whether your project is considered essential, please contact one of our lawyers and provide us with details of the project, including but not limited to:
- What is the use of the project?
- What is the status of the project?
- Who is the owner of the project and how is it being funded?
- Does the project form part of an essential service?
- If a supplier, what projects or businesses do you supply?
4. What potential liability exists for a breach of the Emergency Order?
Any person could be liable to a fine or imprisonment upon conviction as follows:
Offences
7.0.11 (1) Every person who fails to comply with an order under subsection 7.0.2 (4) or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by an order under that subsection is guilty of an offence and is liable on conviction,
(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;
(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and
(c) in the case of a corporation, to a fine of not more than $10,000,000. 2006, c. 13, s. 1 (4).
A person is guilty of a separate offence on each day that an offence occurs or continues (s. 7.0.11(2)), and the court may increase the fine by an amount equal to the financial benefit that was acquired by or that accrued to the person or corporation as a result of the breach (s. 7.0.11(3)).
We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.
