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These past four weeks have been turbulent for Ontario businesses, to say the least.

On March 17, 2020, Ontario declared a state of emergency in response to the COVID-19 pandemic. By March 23, Premier Ford ordered the closure of all non-essential businesses (the “Order”), and on April 3, the Order was revised to shorten the initial list of essential businesses. Any place of business not included in the revised list was required to close effective 11:59pm on April 4, 2020. Unless extended by the government of Ontario, the Order applies until April 13, 2020.

Businesses deemed “essential”

The Order identifies 44 types of essential businesses divided into the following categories:

  • Supply chains
  • Food
  • Services
  • Services to the public restricted to alternative methods of sale
  • Financial services
  • Telecommunications and IT infrastructure/service providers
  • Maintenance
  • Transportation services
  • Manufacturing
  • Agriculture and food production
  • Construction
  • Resources and energy
  • Community services
  • Research
  • Health care and social services

Not all businesses under these broad categories are permitted to remain open; please refer to the text of the Order for the specific criteria applicable to each category. The Order can be found here, and for easier reference, the list of essential workplaces has been added to the government of Ontario website. Additionally, the province launched a toll-free line at 1-888-444-3659 to assist businesses with questions about the Order.

Notably, the revised list of essential businesses excludes many construction projects and activities previously allowed to continue. Permitted construction projects are now restricted to those considered to be critical.

Closure of workplaces, not businesses

Targeted at preventing the spread of COVID-19, the Order focuses on the closure of physical non-essential workplaces. It does not prohibit non-essential businesses from operating remotely (without attending the place of business) for the following purposes:

  • providing goods by mail or other forms of delivery or making goods available for pickup, or
  • providing services online, by telephone or other remote means.

The Order also permits temporary access to a closed place of business for limited purposes (for example, to deal with critical matters relating to the closure of the business or to allow security services to be provided at the place of business).

Failure to comply

The Order was made under the Emergency Management and Civil Protection Act (the “Act”). Failure to comply with the Order is an offence under the Act. Businesses across Ontario have already received warnings to comply with the Order and others have been fined for remaining open. While the fines being issued by police and by-law officers start at $750, the maximum possible penalties under the Act are severe. Further, each day that the Order is disregarded constitutes a separate offence, so non-compliant businesses may be subject to multiple fines.

Other considerations

In addition to listing the workplaces deemed essential, the Order includes additional restrictions on businesses whose operations are permitted to continue. Though not an exhaustive list, a few examples follow:

  • Certain types of businesses may remain open but must restrict public access to their place of business by providing items to the public using an alternative method of sale (such as curb side pick-up or delivery), except in exceptional circumstances. This restriction applies to stores selling hardware products, vehicle parts and supplies, pet and animal supplies, office supplies and computer products (including computer repair), and safety supplies.
  • Realtors are prohibiting from hosting, providing or supporting any open house events.
  • While short term rental accommodations (for example, Airbnb hosts) are restricted from accepting any rentals booked after April 4, 2020, they may provide accommodations to individuals in need of housing during the emergency period.

The Order also requires any person that is responsible for a business that remains open to operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting. Finally, some business owners have expressed confusion regarding operations, projects or activities that are separate from, or unrelated to, the core activities of an essential business. While “ancillary” operations that provide necessary support to the core activities of an essential business are likely fine to continue, business owners should carefully consider whether any separate or unrelated operations meet the criteria of an essential place of business. Partial closures may be necessary for certain businesses to fully comply with the Order.

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