In addition to changes to the list of essential workplaces, there is important new information for Ontario employers on compliance – whether their businesses remain open or are required to close – as well as how emergency orders will be enforced.
Compliance with OHSA and Public Health Advice and Recommendations
Schedule 3 of the updated Emergency Order (Closure of Places of Non-Essential Businesses, O Reg 82/20) is new. It provides, in part, 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.
The effect of these changes is that employers who remain operational must abide by any advice, recommendations or instructions given by public health officials. The term “public health official” is not defined, but presumably includes Public Health Ontario and the Ministry of Health. Links to information and guidance provided by both organizations can be found here:
With the addition of these provisions to the Updated Emergency Order, failure to implement the advice, recommendations, or instructions of public health officials at an Ontario workplace could now result in charges under the Emergency Management and Civil Protection Act (discussed further below).
Likewise, a breach of the Ontario Occupational Health & Safety Act, including failure to take every precaution reasonable in the circumstances for the protection of a worker, could now also a breach of the Emergency Management and Civil Protection Act. This is important because of the extremely stiff penalties under the latter Act.
Enforcement
The Emergency Management and Civil Protection Act is a provincial statute enforceable under the Ontario Provincial Offences Act. As such, it is enforceable by provincial offences officers, which include (but are not limited to) police officers, First Nations constables, special constables, and municipal by-law enforcement officers. Ministry of Labour inspectors have also been designated as provincial peace officers and may also play a role in enforcing emergency orders.
Many municipalities and police services have set up call-lines for non-compliance with COVID-19 measures.
On March 31, 2020, the Ministry of the Solicitor General announced that people who are being charged with an offence under the Emergency Management and Civil Protection Act will be required to identify themselves if asked by a provincial offences officer.
This temporary power was approved by the Ontario Government specifically for the purpose of enforcing emergency orders pursuant to the Act. Failure to correctly identify oneself carries a fine of $750 or $1,000 for obstructing any person in exercising a power if a provincial offences officer issues a ticket.
There are no set fines under the updated Emergency Order. Therefore, in the event that a provincial offences officer believes on reasonable and probable grounds that an offence has been committed, a proceeding may be commenced under Part III of the Provincial Offences Act by the laying of charges in an information and the issuance of a summons.
Pursuant to the Emergency Management and Civil Protection Act, any person could be liable to a fine or imprisonment upon conviction as follows:
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.
The Act also states that a person is guilty of a separate offence on each day that an offence occurs or continues (s. 7.0.11(2)), and that 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)).
Conclusion
The Ontario government has provided itself with extremely broad powers to ensure that non-essential businesses close, and that essential businesses which continue to operate do so in a way that protects public health.
The challenge for employers is that public health advice and recommendations (the wearing of masks, as an example) can be a moving target, so they will need to pay ongoing attention to public health information and bulletins as they appear.
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.
