On March 13, 2020, the Québec government declared a public health emergency in all the territory of the Province of Québec due to the pandemic caused by the spread of COVID-19. The government has the power to declare such an emergency under s.118 of the Public Health Act CQLR c S-2.2 (“PHA”):
118. The Government may 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.
The declaration of this public health emergency enables the Québec government to enact emergency measures without further formality, as provided for in s.123 PHA:
123. Notwithstanding any provision to the contrary, while the public health emergency is in effect, the Government or the Minister, if he or she has been so empowered, may, without delay and without further formality, to protect the health of the population
(1) order compulsory vaccination of the entire population or any part of it against smallpox or any other contagious disease seriously threatening the health of the population and, if necessary, prepare a list of persons or groups who require priority vaccination;
(2) order the closing of educational institutions or of any other place of assembly;
(3) order any person, government department or body to communicate or give to the Government or the Minister immediate access to any document or information held, even personal or confidential information or a confidential document;
(4) prohibit entry into all or part of the area concerned or allow access to an area only to certain persons and subject to certain conditions, or order, for the time necessary where there is no other means of protection, the evacuation of persons from all or any part of the area or their confinement and, if the persons affected have no other resources, provide for their lodging, feeding, clothing and security needs;
(5) order the construction of any work, the installation of sanitary facilities or the provision of health and social services;
(6) require the assistance of any government department or body capable of assisting the personnel deployed;
(7) incur such expenses and enter into such contracts as are considered necessary;
(8) order any other measure necessary to protect the health of the population.
The Government, the Minister or another person may not be prosecuted by reason of an act performed in good faith in or in relation to the exercise of those powers.
S.123 (8) of the PHA confers broad powers to the government of Québec to order necessary measures to protect the health of the population, without delay or formality. Summarily, this means that the government may implement measures without the need to go through a legislative or committee process, and that these measures have immediate effect.
The state of emergency was declared on March 13, 2020, by order-in-council 177-2020, for a period of 10 days, and subsequently renewed by order-in-council 222-2020 until March 29, 2020. We can likely expect that the state of emergency will be renewed every ten days until the abatement of the effects of the pandemic on the territory of the province of Québec.
As the situation in the province evolved over the past two weeks, the government has issued many ministerial rulings implementing emergency measures as well as a number of orders-in-council, most notably Order-in-council 223-2020 ordering the shutdown of all non-priority services. In the initial press release, the government spoke of essential services; however, with confusion regarding the term borrowed from labour law and the law of collective agreements, the term “essential services” has been rebranded as “priority services”. Health, public safety and governmental services (including legal services) have largely been maintained as priority services.
Many private sector businesses are affected by the shutdown order, but it should be clear that even if the physical establishments, such as offices, are shutdown, if operations can continue remotely, with employees and management logging in from home, those operations are allowed to continue unfettered. The thornier issue is determining which private sector businesses clearly benefit from the shutdown exemption as priority services.
Schedule I to order-in-council 223-2020 lays out the various exempt services throughout a large cross-section of industrial and commercial activity:
Maintenance and operation of strategic infrastructures
a. Energy production, supply, transmission, transportation and distribution (hydroelectricity, fossil fuels, wind energy, biomass energy)
b. Maintenance of essential public infrastructures in proper working order (bridges, municipal buildings, etc.)
c. Construction, maintenance and upkeep of essential activities in connection, in particular, with public and private infrastructures that may create a risk for public health and safety (private dams, management of hazardous and radioactive waste, etc.)
d. Sanitary services and supply chains (for example water treatment plants)
e. Computer resources (security, maintenance, urgent needs in the current situation)
f. Data centres
Priority manufacturing activities
a. Food production (for example agricultural operations, food processing, drink production, slaughterhouses, market-garden vegetable production)
b. Production of inputs necessary for priority sectors
c. Pulp and paper sector
d. Manufacture of medical instruments
e. Manufacture of chemicals
f. Manufacture of sanitary products
g. Manufacture of micro-electronic components
h. Industrial facilities (in particular in the aluminum sector) and mining facilities, which must reduce their activities to a minimum
i. Manufacturing and maintenance in the defence sector
Priority commercial enterprises
a. Grocery stores and other food retailers
c. Convenience stores
d. Stores not in a mall (offering grocery, pharmacy or hardware products)
e. Businesses supplying agricultural operations (machinery, fertilizer, etc.)
f. Société des alcools du Québec and Société québécoise du cannabis
g. Furniture and household appliances (online or telephone sales only)
h. Funeral services business and cemetery
i. Restaurants (drive-through, take-out and delivery only)
k. Cleaners, laundries and laundromats
l. Medical and orthopaedic supply firms
m. Suppliers of pet food and supplies
n. Moving firms
o. Work equipment (safety and protection)
Media and telecommunications services
a. Telecommunications (network and equipment)
b. Cable services
c. Printing (newspaper printing only)
d. National media
e. Local media
f. Communications agencies (advertising, production, feedback)
Banking, financial and other services
a. Financial services (financial institutions, automatic teller machines and other payment methods)
b. Insurance (telephone services)
c. Payroll services
d. Accounting services
e. Financial market and stock exchange services
f. Placement agencies
Construction sector services
a. Construction firms, for emergency repairs or to ensure safety
b. Electricians, plumbers and other trades (emergency services only)
c. Equipment rental firms
Building maintenance and upkeep services
a. Cleaning, upkeep and pest management
b. Building maintenance (elevators, ventilation, alarm systems, etc.)
c. Household appliance maintenance and repair
Priority services in the field of transportation and logistics
a. Public transit services and passenger services
b. Ports and airports
c. Maintenance of locomotives, aircraft and boats and essential air operations (air transportation)
d. Supply and distribution of foodstuffs, grocery stores and convenience stores
e. Transportation, storage and distribution of goods
f. Snow removal and road maintenance
g. Service stations and mechanical repair of cars, tow truck and trucking services and specialized equipment for essential industries and roadside assistance
h. Remunerated passenger transportation and para-transit services
i. Postal, courier and parcel delivery services
Should a business feel it is offering a service that should qualify as priority and that it does not fall into an exempted category, there is a process to request exemption available on the Government of Québec’s website.
While the Government may order specific penalties for violations, the general penalties for failure to follow the orders given validly under the PHA vary between $1,000 and $6,000 (s.139 PHA) and such fines are doubled for a second offence (s.142 PHA).
139. Any person who, within the scope of application of Chapter XI, impedes or hinders the Minister, the national public health director, a public health director or a person authorized to act on their behalf, refuses to obey an order they are entitled to give, refuses to give access to or communicate the information or documents they are entitled to require, or conceals or destroys documents or other things relevant to the exercise of their functions is guilty of an offence and is liable to a fine of $1,000 to $6,000.
142. In the case of a second or subsequent offence, the minimum and maximum fines prescribed in this Act are doubled.
These penalties apply to all persons, legal or physical, that commit such offences and while there is no deemed liability of officers, directors or employees, any person assisting, allowing, encouraging, ordering or authorizing the offence is also guilty of the same offence (s. 141 PHA). It is feasible therefore that any employee, officer or director that was involved in the decision chain leading to the offence could be held liable.
141. Any person who assists or who incites, advises, encourages, allows, authorizes or orders another person to commit an offence under this Act is guilty of an offence.
A person convicted of an offence under this section is liable to the same penalty as that provided for the offence the person assisted or incited another person to commit.
List of ministerial rulings by the Ministry of Health and Social Services:
- Ministerial ruling 2020-003 on March 14, 2020, suspending elections;
- Ministerial ruling 2020-004 on March 15, 2020, relating to public assemblies;
- Ministerial ruling 2020-005 on March 17, 2020, relating to childcare services for certain workers;
- Ministerial ruling 2020-006 on March 19, 2020, relating to the suspension of certain access orders under youth protection laws;
- Ministerial ruling 2020-007 on March 21, 2020, and Ministerial ruling 2020-0008 on March 22, 2020, relating to the modification of certain collective agreements and other labour deployment issues;
- Ministerial ruling 2020-009 on March 23, 2020, relating to the suspension of visits in care facilities for the elderly and long-term care facilities;
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.