This post was originally published at 12:01am March 24, 2020 and was last updated at 2pm on March 25, 2020.
On March 23, the Government of Quebec announced on its website that as of Wednesday, March 25 at 12:01 a.m., and until April 13, all non-priority services and activities would have to close. The announcement was modified towards the end of the day on March 24: all non-priority services and activities may maintain minimal operations to ensure the resumption of their activities. Teleworking and e-commerce are still permitted for all businesses.
The order-in-council on essential services has now been published in the Gazette officielle du Québec.
The Order-in-Council on Essential Services
Section 118 of the Public Health Act allows the government to "declare a public health emergency in all or part of the territory of Québec where a serious threat to the health of the population, whether real or imminent, requires the immediate application of certain measures provided for in section 123 to protect the health of the population".
A state of emergency was declared March 13, 2020 and then renewed by Order-in- Council on March 20, 2020 to deal with the pandemic. The Order-in-Council on Essential Services applies certain measures in Section 123 of the Public Health Act and resembles the announcement updated late March 24 by ordering that all activity carried on in work environments be suspended, except for:
- work environments providing the priority services. The list of priority services and activities is in a schedule and the Minister of Health and Social Services is authorized to amend the schedule to add or remove priority services or to clarify it; and
- as regards the minimum activity needed to ensure the future resumption of the activities of enterprises providing non-priority services, excluding commercial enterprises. The use of commercial enterprises is boarder than the prior announcement on March 24, which only referred to stores.
Note that the suspension does not prevent teleworking in private residence or its equivalent or e-commerce or any other form of remote trading. Also, all businesses that produce inputs necessary for priority services and activities can maintain their activities accordingly.
Finally, the Order-in-Council on Essential Services also allows the Minister of Health and Social Services to take any measure provided for in subparagraphs 1 to 8 of the first paragraph of section 123 of the Public Health Act which includes matters such as (i) compulsory vaccination, (ii) closing of a place of assembly, (iii) ordering any person, to communicate or give to the Government access to any document or information held, even personal or confidential; and (iv) prohibiting entry into all or part of the area concerned, the evacuation of persons from all or any part of the area concerned or their confinement. Section 123(8) of the Public Health Act allows the Minister to order any other measure necessary to protect the health of the population.
Types of Businesses on the List
The list was first called essential services and commercial activities. The government now refers to it as the priority services and activities list, presumably because "essential services" is a distinct legal concept that already exists. The list is divided into 11 categories, each of which contains a more detailed list.
- Priority health services and social services
- Public security services
- Government services and other priority activities
- Maintenance and operation of strategic infrastructure
- Priority manufacturing activities
- Priority commercial enterprises
- Media and telecommunications services
- Banking, financial and other services
- Construction sector services
- Building maintenance and upkeep services
- Priority services in the field of transportation and logistics
The list that appears as a schedule to the Order-in-Council on Essential Services updates that last shown on the government site at the end of the day on March 24, mostly by expanding and clarifying certain portions. The list should be reviewed regularly by business as it will likely continue to change.
Note that the Order-in-Council on Essential Services does not provide a purpose to help guide its interpretation. For example, the Prince Edward Island decree defines "essential services" as those whose interruption would endanger the life, health or personal safety of all or part of the population.
Other questions remain. For example, as many other provinces and foreign jurisdictions are also in the process of making essential service designations, suppliers of businesses deemed essential in other jurisdictions but not in Quebec may be wondering what to do. Also, no details are provided as to what is meant by minimal operations to ensure the resumption of business for businesses that provide non- priority services. We interpret this to mean the necessary operations to ensure they can start up when the order is lifted. Finally, the announcement provides no specific guidance for businesses that provide both priority and non- priority services and business activities and how they should manage the non- priority portion of their businesses.
But What About the Businesses That Are Not on the List?
If a business conducts an activity that is not listed, but considers it essential, it can verify the designation as an essential business by filling out a form, following which an information officer of the Government of Quebec will contact the business.
Additional Guidance for Businesses that Can Remain Open
The initial announcements mentioned that businesses that could remain open would have to ensure that persons present in their establishments respect, as much as possible, the principles of social distancing.
The Order-in-Council from March 20, 2020, which prohibits public gatherings and makes an exception for a workplace whose activities are not suspended by the Order-in-Council on Essential Services, or to obtain a service or good from an individual, institution or enterprise or other body, whose activities are not suspended by the Order-in-Council on Essential Services, officially requires assembled persons covered by those exceptions to, as much as possible, maintain a minimum distance of two meters between them.
Additional obligations may apply in terms of reasonable precautions to protect the health of their employees, which may include the provision of appropriate protective equipment, downsizing, allowing non-essential employees to work remotely, requiring employees to self-report any illness (including that of a family member).
There are a number of the offences under the Public Health Act that can apply in case of non-compliance with both Orders-in-council, all of which can result in a fine of $1,000 to $6,000 with the minimum and maximum fines being doubled in the case of a second or subsequent offence.
These offences are:
- Impeding or hindering the Minister, the national public health director, a public health director or a person authorized to act on their behalf, refusing to obey an order they are entitled to give, refusing to give access to or communicate the information or documents they are entitled to require, or concealing or destroying documents or other things relevant to the exercise of their functions.
- Reporting or providing false, incomplete or misleading information or a document that is incomplete or contains false or misleading information in order to deceive the Minister, the national public health director, a public health director or a person authorized to act on their behalf.
- Assisting or inciting, advising, encouraging, allowing, authorisng or ordering another person to commit an offence under the Public Health Act.
The Government of Quebec has stated that the situation will be reassessed daily. We will keep you informed. One thing is certain: Quebec businesses will need a lot of advice in the coming days, because things are far from clear. Your usual contact at Stikeman Elliott will be able to answer your questions on issues related to the impact of COVID-19 and related governmental measures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.