2021 National Law Review     Go To Thought Leader       Article of the Year Award  On April 16, 2021, the government of Ontario announced its strictest COVID-19 response measures to date, responding to a continued increase in daily case counts despite a province-wide lockdown. The stay-at-home order, effective April 8, 2021, will be extended for an additional two weeks, for a total of six weeks. The Ontario government has also added new restrictions and increased workplace inspections to ensure employers are complying with all COVID-19–related health and safety measures. Below is a review of the new measures and the penalties that employers and workers may face for failing to comply. These measures will be in place until May 20, 2021, unless extended.

Retailers and Big-Box Stores

According to the order, retailers and “big box” stores will only be able to operate if they ensure that the total number of people inside the store does not exceed 25 percent capacity. This change went into effect on April 17, 2021. Previous measures that restricted retailers to selling essential goods, and mandating the closure of nonessential retailers, continue to apply.

Essential and Nonessential Construction

The government announced that all nonessential construction must cease operations. These changes went into effect on April 17, 2021. According to the order, essential construction can continue.

Essential construction consists of “constructive activities or projects and related services, including land surveying and demolition services” that perform work under the following categories, among others:

• Health care or long-term care
• Municipal or provincial infrastructure (e.g., “transit, transportation, resource, energy and justice sectors”)
• Electricity or natural gas
• “[S]chools, colleges, universities or child care centres”
• Maintaining and operating “petrochemical plants and refineries”
• “[S]ignificant industrial petrochemical projects where preliminary work commenced before April 17, 2021”
• Industrial construction that produces, maintains, modifies, or enhances equipment related to combatting COVID-19 (e.g., personal protective equipment and ventilators)
• Work that increases the capacity for producing, processing, manufacturing or distributing food, beverages or agriculture products
• Work that “provide[s] additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services,” if the work began before April 17, 2021
• Work that provides, “additional capacity in the operation and delivery of Information Technology (IT) services or telecommunication services,” if the work began before April 17, 2021
• Work that provides, “additional capacity to, or enhance[s] the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment and materials,” if the work began before April 17, 2021
• Broadband internet or cellular technology services
• Residential construction projects
• Prep work needed for “institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure”
• Work that is needed to block off or close inactive construction sites “to ensure public safety”
• Work that is funded by the Crown, an agency of the Crown, or a municipality
• Projects that provide shelter to vulnerable people or create affordable housing and are funded by government agencies, municipalities, service managers, registered charities or nonprofits

Interprovincial Travel

Ontario further announced the closing of its provincial land borders with Quebec and Manitoba starting on April 19, 2021. Checkpoints will be placed at all land entry points into the province, and persons may only cross the border for “essential” reasons, such as for work, medical care, and transportation of goods.

Workplace Inspection Blitzes

The Ontario government stated that additional inspectors would be sent to construction sites to ensure health measures are in place and that employers are adhering to them. The government has also indicated that the next wave of inspections will target office employers that continue to require employees to be physically present at the workplace, despite being able to conduct their work remotely.

The government informed employers that this was their “last warning,” and that employers must ensure that if an employee can work from home, he or she must do so. In accordance with the Reopening Ontario (A Flexible Response to COVID-19) Act, employees may only be at the workplace if the “nature of their work requires them to be on-site.”

During a workplace inspection, an inspector or compliance officer may ask whether an employer has developed a COVID-19 workplace safety plan and may ask to see it. Employers may want to consider updating their safety plans following these new restrictions, and ensure that they are posted in conspicuous places and are readily accessible to employees and inspectors.

In addition to the provincial restrictions, local public health regions may enact their own orders in an effort to curb the spread of COVID-19. For example, both the Region of Peel and Toronto Public Health have issued orders under Section 22 of the Health Protection and Promotion Act  that give public health officials the power to immediately close any workplace where five or more employees have contracted COVID-19 due to workplace exposure. These closures will last for at least 10 days and all employees will be required to self-isolate during this time.

Tickets and Convictions

The government of Ontario initially indicated that police would be granted explicit powers to stop and question anyone found outside of a home. These powers would have permitted police officers to ask anyone outside of a home, including persons in a vehicle, for their home addresses and reasons for being out of their residences. After statements from municipal police forces and community backlash, the Ontario government amended the increased police powers. As of April 17, 2021, police can require an individual to provide information if the police have “reason to suspect that an individual may be participating in a gathering that is prohibited.” If this occurs and the police officer “believes that it would be in the public interest to determine whether the individual is in compliance with that clause, the officer may require the individual to provide information for the purpose of determining whether they are in compliance with that clause.”

Police officers and by-law enforcement officers still have the ability to stop and question anyone if they have “reason to suspect” that the person is not following the emergency orders. If a person is found to be in violation of an order, a police officer or by-law enforcement officer may issue a ticket with a set fine or issue a summons to appear before a court. Employers may want to be aware that their employees may be stopped and questioned by enforcement officers while in the course of work or while engaged in travel or transit related to work.

Set Fines

If issued a ticket for violations of the Emergency Management and Civil Protection Act (EMCPA), corporations and individuals will be required to pay a fine set by the chief justice of the Ontario Court of Justice.

Any corporation or individual who is found to not be in compliance with any of the government’s health and safety orders can receive the following fines:

• $750 for individuals;
• $1,000 for corporations; and
• $1,000 for “anyone who prevents an enforcement officer from exercising their powers or performing their duties to enforce the orders.”

All set fines will also have a 20 percent victim fine surcharge applied.

Convictions

If violations of the EMCPA are egregious, or if the violator is a repeat offender, an enforcement officer may exercise his or her discretion to pursue a conviction. In this case, the officer will issue a court summons to the violator, and the potential fine is significantly higher. Upon conviction, the court may issue fines and order imprisonment up to a maximum of:

• $100,000 for individuals, and a term of imprisonment of not more than one year;
• $500,000 for individuals who are directors or officers of a corporation, and a term of imprisonment of not more than one year; and
• $10,000,000 for corporations.

Key Takeaways for Employers

As positive COVID-19 cases in Ontario continue to rise, restrictions will rapidly evolve and tighten, and the workplace inspections will become more frequent and rigorous. As a result, employers may want to

• continually review their compliance with sector-specific restrictions;
• require that employees who are able to work from home do so;
• ensure that workplace COVID-19 health and safety measures are in place; and
• ensure that all employees who work at the workplace are working in compliance with those measures.

According to the order, all Ontario employers must also have a COVID-19 safety plan in place and must review those plans when restrictions tighten or incidents occur.