During the evening of January 13, 2021, the Provincial Government issued two Regulations in support of its second state of emergency declaration.

Although our In a Flash dated January 12, 2021 captured some of the key areas addressed by these Regulations, the Regulations contain certain differences when compared to the original Government news release and also contain extensive details pertaining to the Stay-At-Home Order.

The following summarizes the most important highlights of the Regulations.

Essential Construction Activities

Pursuant to Ontario Regulation 10/21, the Ontario Government amended the description of construction activities permitted to remain open.  This includes construction activities or projects and related services, including land surveying and demolition services that:

• are associated with the health care sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;
• ensure safe and reliable operations of, or provide new capacity in, provincial infrastructure, including the transit, transportation, resource, energy and justice sectors beyond day-to-day maintenance;
• support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage or in the supply of resources;
• support the operations of, or provide new capacity in, schools, colleges, universities, municipal infrastructure or child care centres within the meaning of the Child Care and Early Years Act, 2014;
• are required for,
  • the maintenance and operations of petrochemical plants and refineries,
  • significant industrial petrochemical projects where preliminary work commenced before January 12, 2021, or
  • industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance or enhancement of personal protective equipment, medical devices such as ventilators and other identified products directly related to combatting the COVID-19 pandemic;
• would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
• were commenced before January 12, 2021 and that would,
  • provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
  • provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services;
• support the operations of broadband internet and cellular technologies and services;
• are related to residential construction projects where,
  • a building permit has been granted for a single family, semi-detached and townhomes,
  • the project is a condominium, mixed-use or other residential building, or
  • the project involves renovations to residential properties and construction work that was started before January 12, 2021;
• prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;
• are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;
• are funded in whole or in part by the Investing in Canada Infrastructure Program;
• are,
  • intended to provide shelter or supports for vulnerable persons or affordable housing; and
  • being funded in whole or in part by, or are being undertaken by,
    • the Crown in right of Canada or in right of Ontario,
    • an agency of the Crown in right of Canada or in right of Ontario,
    • a municipality,
    • a service manager as defined in the Housing Services Act, 2011, or
    • a registered charity within the meaning of the Income Tax Act (Canada), or
    • a not-for-profit corporation.

We note that there are some differences in the list above in comparison to what was previously provided by the Government of Ontario.  We strongly encourage Employers in the construction industry to consult with the Regulation and with your legal advisor before commencing work.

Conditions Imposed on other Businesses Permitted to Open and Sector Specific Public Health and Workplace Safety Measures

Ontario Regulation 10/21 also imposes new conditions on certain businesses that are permitted to remain open.

Retailers

• Safety supply stores, businesses that sell, rent or repair assistive/mobility/medical devices, aids and/or supplies, and optical stores that sell prescription eyewear to the public
  • By appointment only
  • Operating hours restricted to between 7 a.m. and 8 p.m., and may not deliver goods to patrons outside of those hours
• Stores that sell liquor, including beer, wine and spirits must
  • Limit the number of persons in the place of business so that the total number of persons in the place of business at any one time does not exceed 25% capacity
  • Operating hours restricted to between 7 a.m. and 8 p.m., and may not deliver goods to patrons outside of those hours
• Shopping malls
  • Operating hours restricted to between 7 a.m. and 8 p.m., except to provide access to a business or place that is permitted to open during those hours and only has a public entrance that is open to the interior of the shopping mall
  • May not deliver goods to patrons outside of the specified hours
• Motorized vehicle sales
  • Business which sell motor vehicles, recreational vehicles, trailers, travel trailers, boats and other watercraft, or other motorized vehicles including power-assisted bicycles, golf carts, scooters, snowmobiles, and all-terrain vehicles
    • Operating hours restricted to between 7 a.m. and 8 p.m., and may not deliver goods to patrons outside of those hours
• Outdoor markets
  • Operating hours restricted to between 7 a.m. and 8 p.m., and may not deliver goods to patrons outside of those hours
• General retail
  • Other retailers including cannabis retail stores operating under the authority of a retail store authorization issued under the Cannabis License Act, 2018, garden centres, hardware stores, pet food, computer stores, etc.:
    • An item may only be provided for pickup if the patron ordered the item before arriving at the business premises
    • Operating hours restricted to between 7 a.m. and 8 p.m., and may not deliver goods to patrons outside those hours

Entertainment

• Concert venues, theatres, and cinemas closed, including drive-in or drive-through events

Golf and driving ranges

• Closed

Stay-At-Home Order

Pursuant to Ontario Regulation 11/21, the Ontario Government has issued a Stay-At-Home Order, effective January 14, 2021 at 12:01 a.m.

The Order requires persons to remain at home, subject to certain exceptions. Specifically, the Order provides that every individual shall remain in their place of residence at all times unless leaving their place of residence is necessary for one or more of the following purposes:

Work, school, and child care

• Working or volunteering where the nature of the work or volunteering requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.
• Attending school or a post-secondary institution
• Attending, obtaining or providing child care.
• Receiving or providing training or educational services.

Obtaining goods and services

• Obtaining food, beverages and personal care items.
• Obtaining goods or services that are necessary for the health or safety of an individual, including health care services and medications.
• Obtaining goods, obtaining services, or performing such activities as are necessary for the safe operation, maintenance and sanitation of households, businesses, means of transportation or other places.
• Purchasing or picking up goods through an alternative method of sale, such as curbside pickup, from a business or place that is permitted to provide curbside pickup under the Stage 1 Order.
• Attending an appointment at a business or place that is permitted to be open by appointment under the Stage 1 Order.
• Obtaining services from a financial institution or cheque cashing service.
• Obtaining government services, social services and supports, mental health support services or addictions support services.

Assisting others

• Delivering goods or providing care or other support or assistance to an individual who requires support or assistance, or receiving such support or assistance, including,
  • i. providing care for an individual in a congregate care setting, and
  • ii. accompanying an individual who requires assistance leaving their residence for any purpose permitted under this Order.
• Taking a child to the child’s parent or guardian or to the parent or guardian’s residence.
• Taking a member of the individual’s household to any place the member of the household is permitted to go under this Order.

Health, safety, and legal purposes

• Doing anything that is necessary to respond to or avoid an imminent risk to the health or safety of an individual, including,
  • i. protecting oneself or others from domestic violence,
  • ii. leaving or assisting someone in leaving unsafe living conditions, and
  • iii. seeking emergency assistance.
• Exercising, including,
  • i. walking or moving around outdoors using an assistive mobility device, or
  • ii. using an outdoor recreational amenity that is permitted to be open under the Stage 1 Order.
• Attending a place as required by law or in relation to the administration of justice.
• Exercising an Aboriginal or treaty right as recognized and affirmed by section 35 of the Constitution Act, 1982.

Multiple residences and moving

• Travelling to another residence of the individual if,
  • i. the individual intends to be at the residence for less than 24 hours and is attending for one of the purposes set out in this order; or
  • ii. the individual intends to reside at the residence for at least 14 days.
• Travelling between the homes of parents, guardians or caregivers, if the individual is under their care.
• Making arrangements to purchase or sell a residence or to begin or end a residential lease.
• Moving residences.

Travel

• Travelling to an airport, bus station or train station for the purpose of travelling to a destination that is outside of the Province.

Gatherings

• Attending a gathering for the purpose of a wedding, a funeral or a religious service, rite or ceremony that is permitted under the Stage 1 Order or making necessary arrangements for the purpose of such a gathering.
• If the individual lives alone, gathering with the members of a single household.

Animals

• Obtaining goods or services that are necessary for the health or safety of an animal, including obtaining veterinary services.
• Obtaining animal food or supplies.
• Doing anything that is necessary to respond to or avoid an imminent risk to the health or safety of an animal, including protecting an animal from suffering abuse.
• Walking or otherwise exercising an animal.

Enhanced Public Health and Workplace Safety Measures

Pursuant to Ontario Regulation 10/21 under the Reopening Ontario (A Flexible Response to COVID-19) Act, the Ontario Government has implemented enhanced public health and workplace safety measures.

The Ontario Government indicated that the enhanced measures are expected to be in effect until at least February 11, 2021. These enhanced measures are in addition to and/or amend the measures initially introduced as part of the December 26, 2020 provincial lockdown.

For a detailed overview of these initial measures, please refer to: In-A-Flash: Ontario Government Announces Provincial Lockdown Commencing December 26, 2020.

The new enhanced public health and workplace safety measures include the following:

General Public Health Measures for all Businesses, Organizations, and Facilities

Work from home except where necessary:

• Each person responsible for a business or organization that is open shall ensure that any person who performs work for the business or organization conducts their work remotely, unless the nature of their work requires them to be on-site at the workplace.
• The above measure does not apply to 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.

Face coverings:

• Every person in the premises of a business or organization that is open shall ensure that they wear a mask or face covering in a manner that covers their mouth, nose and chin during any period in which they are in an indoor area of the premises, unless the person in the indoor area:
  • is a child who is younger than two years of age;
  • is attending a school or private school within the meaning of the Education Act that is operated in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health;
  • is attending a child care program at a place that is in compliance with the child care re-opening guidance issued by the Ministry of Education;
  • is receiving residential services and supports in a residence listed in the definition of “residential services and supports” in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008;
  • is in a correctional institution or in a custody and detention program for young persons in conflict with the law;
  • is performing or rehearsing in a film or television production or in a concert, artistic event, theatrical performance or other performance;
  • has a medical condition that inhibits their ability to wear a mask or face covering;
  • is unable to put on or remove their mask or face covering without the assistance of another person;
  • needs to temporarily remove their mask or face covering while in the indoor area,
    • to receive services that require the removal of their mask or face covering,
    • to engage in an athletic or fitness activity,
    • to consume food or drink, or
    • as may be necessary for the purposes of health and safety;
  • is being accommodated in accordance with the Accessibility for Ontarians with Disabilities Act, 2005;
  • is being reasonably accommodated in accordance with the Human Rights Code; or
  • performs work for the business or organization, is in an area that is not accessible to members of the public and is able to maintain a physical distance of at least two metres from every other person while in the indoor area.

Physical distancing:

• Every member of the public in a place of business or facility that is open to the public shall maintain a physical distance of at least two metres from every other person, except from their caregiver or from members of the person’s household.
• Physical distancing as described above is not required:
  • where necessary to complete a transaction or to receive a service, if the member of the public wears a mask or face covering in a manner that covers their mouth, nose and chin or is subject to an exception;
  • when passing one another in a confined location, such as in a hallway or aisle, if the member of the public wears a mask or face covering in a manner that covers their mouth, nose and chin or is subject to an exception; and
  • in situations where the Regulation expressly authorizes persons to be closer than two metres from each other.

Accessing closed indoor and outdoor recreational amenities:

• No person shall use an indoor or outdoor recreational amenity that is required to close.

Events and gatherings:

• Limit for outdoor organized public events and social gatherings, must comply with requirements on physical distancing and face coverings:
  • 5 people outdoors.

Schools and Child Care (to come into effect January 25, 2021)

Schools and private schools

• Schools and private schools in the following public health units will not return to in-person instruction:
  • Windsor-Essex County Health Unit
  • Peel Region Health Unit
  • City of Toronto Health Unit
  • York Regional Health Unit
  • City of Hamilton Health Unit
• Schools and private schools in the above public health units may open:
  • to the extent necessary to facilitate the operation of a child care centre within the meaning of the Child Care and Early Years Act, 2014;
  • if approved by the Minister of Education, to the extent necessary to facilitate the operation of an extended day program, as defined in the Education Act, for the provision of emergency child care for the children of individuals listed in Schedule 5 during the period when schools are not permitted to provide in-person teaching or instruction;
  • to allow staff of the school or private school to provide remote teaching, instruction or support to pupils, so long as the school or private school operates in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health; or
  • to the extent necessary to provide in-person instruction to pupils with special education needs who cannot be accommodated through remote learning and who wish to attend a school or their private school for in-person instruction, so long as the school or private school operates in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health.
• Schools and private schools in other public health units may provide in-person teaching and instruction if they meet the following conditions:
  • They must be operated in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health.
  • If in-person teaching or instruction at the institution involves singing or the playing of brass or wind instruments,
    • every person who is singing or playing must be separated from every other person by plexiglass or some other impermeable barrier, and
    • every person in the instructional space must remain at least two metres apart from every other person in the instructional space.
  • If a person who holds a study permit issued under the Immigration and Refugee Protection Act (Canada) and who entered Canada on or after November 17, 2020 attends the school, in-person teaching or instruction may only be provided to that person if the school or private school,
    • has a plan respecting COVID-19 that has been approved by the Minister of Education, and
    • operates in accordance with the approved plan.
• With the exception of the requirement listed above regarding a person holding a study permit, the above does not apply to a school operated by:
  • a band, a council of a band or the Crown in right of Canada;
  • an education authority that is authorized by a band, a council of a band or the Crown in right of Canada; or
  • an entity that participates in the Anishinabek Education System.

The Ontario Government has stated that the Chief Medical Officer of Health will advise the Ministry of Education by January 20, 2021 which public health units will be permitted to resume in-person instruction based on modelling. Schools in northern public health units will continue to remain open.

Child care centres for non-school aged children will remain open, and emergency child care for school-aged children will end in approved public health unit regions on January 22, 2021, as these elementary schools return to in-person learning.  During this extended period of online learning, in areas where in-person elementary learning is suspended, emergency child care will continue for eligible families in regions subject to school closures, as identified by the Chief Medical Officer of Health.

Workplace Safety

The Ontario Government also provided that businesses must follow public health measures and should review the workplace safety guidelines.

The Ministry of Labour, Training and Skills Development will commence a “Stay Safe All Day” campaign which will focus workplace inspections in areas of high transmission and provide educational materials to employers to promote safe behaviour. As part of this campaign, inspectors will focus on workplaces with reported COVID-19 outbreaks, manufacturing businesses, warehouses, distribution centres, food processing operations, construction projects, and publicly accessible workplaces deemed essential. There will also be a focus on on-site inspections of long-term-care homes and retirement homes.

In light of these enhanced public health and workplace safety measures, employers should identify how these measures will restrict their operations and introduce any measures necessary to ensure compliance.

If you have any questions about these new measures please contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.