On March 23rd , Ontario’s Provincial government ordered the mandatory closure of all non-essential workplaces to slow the spread of COVID-19 pursuant to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. (“EMCPA”). A 74 item list of “essential workplaces” was released later that evening and includes a number of workplaces relevant to the municipal response to the pandemic. While the order does not impact anyone working from home, only essential workplaces may remain open.
Note: on the evening of March 24 th , the Lieutenant Governor executed the Order in Council, approving the regulation providing for the order to close non-essential workplaces. The Order in Council is now available and can be found here:https://files.ontario.ca/solgen-oic-closure-nonessential-business-2020-03-24.pdf We have updated this article to reflect the differences from the list released on the 23rd.
A key difference from the list of essential workplaces released on the 23 rd is the provision for temporary access to closed workplaces for a variety of purposes, including accessing goods or supplies, attending to critical matters relating to the closure that cannot be dealt with remotely, for security services, inspections, maintenance and repairs as well as for performing work necessary to comply with applicable laws (see ss.1(2)).
In addition, the approved regulation contains a general statement (ss. 1 (5)):
(5) Nothing in this order precludes operations or delivery of services by the following in Ontario, regardless of whether or not they are listed in Schedule 2:
There is some redundancy between this statement and the enumerated list of workplaces in Schedule 2, which lists a number of governmental services and also lists “other government services including…” The nomenclature in this and other orders under the EMCPA is inconsistent and contains a number of undefined terms that appear to overlap such as ‘government’, ‘Government of Ontario, and ‘Administrative Authorities’ (see our discussion here).
Given the circumstances and speed with which these EMCPA orders are being drafted, their language should not be parsed too closely. It is reasonable to interpret ‘government’ in this context to include municipal governments. Subsection 1(5) would then broadly exempt municipal workplaces from the
closure order. This is not to say that municipalities should cease doing what they have already been doing ? identifying the essential services they provide (hopefully already set out in their emergency management plans under s. 3 of the EMCPA), and sending home to work remotely those employees whose physical presence is not required to deliver the essential services.
To that end, the enumerated list of workplaces in Schedule 2 is helpful to municipalities in that it sheds light on what the province considers essential. The list includes workplaces relevant to maintaining municipal facilities and IT (items 13, 14 & 15), the construction, maintenance and operation of infrastructure and utilities, including roads (items 20, 27-29, 41.a-e) and governmental services related to issuing permits and licenses, as well as inspections and the regulation of business (items 41.h and 74).
Notably, municipal by-law enforcement is not specifically referenced; although, certain areas related to enforcement are, such as the regulation and inspection of businesses (item 74). There are also more general categories, which may be relevant by-law enforcement (item 61 lists professional and social services that support the legal and justice system and item 41.h lists “other government services including licenses and permits”.
I have included excerpts from the list relevant to municipalities below:
13. Businesses that provide support and maintenance services, including urgent repair, to maintain the safety, security, sanitation and essential operation of institutional, commercial industrial and residential properties and buildings, including, property management services, plumbers, electricians, custodial/janitorial workers, cleaning services, , security services, fire safety and sprinkler systems, building systems maintenance and repair technicians and engineers, mechanics, (e.g. HVAC, escalator and elevator technicians), and other service providers who provide similar services.
14. Businesses engaged in providing or supporting Information Technology (IT) including online services, software products and related services, as well as the technical facilities such as data centres and other network facilities necessary for their operation and delivery.
15. Businesses providing telecommunications services (phone, internet, radio, cell phones etc) as well as support facilities such as call centres necessary for their operation and delivery.
20. Businesses, facilities and services that support and facilitate the two- way movement of essential goods within integrated North American and Global supply chains.
27. Construction projects and services required to ensure safe and reliable operations of critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance;
28. Construction work and services, including demolition services, in the industrial, commercial, institutional and residential sectors;
29. Construction work and services that supports health and safety environmental rehabilitation projects.
40. Businesses that support environmental management/monitoring and spill clean-up and response, including environmental consulting firms, professional engineers and geoscientists, septics haulers, well drillers, pesticides applicators and exterminators, management of industrial sewage/effluent (eg for mining operations), and environmental laboratories;
41. Utilities, and Businesses that support the provision of utilities and community services, including by providing products, materials and services needed for the delivery of utilities and community services:
a. Waste Collection, Waste/ Sewage Treatment and Disposal, operation of landfills, and Hazardous Waste Disposal;
b. Potable drinking water;
c. Electricity Generation, transmission, distribution and storage;
d. Natural Gas distribution, transmission and storage,
e. Road construction and maintenance;
f. police, fire, emergency services including coroner services and pathology services;
g. corrections and courts services;
h. other government services including licenses and permits;
42. Businesses engaged in or supporting the operation, maintenance and repair of critical infrastructure (railways, dams, bridges, highways, erosion control structures, etc.);
61. Professional and social services that support the legal and justice system;
74. Organizations, including Administrative Authorities, that regulate and inspect businesses.
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.