The Cost of Doing Non-Essential Business in Ontario during COVID-19

Penalties of up to $10 Million for Non-Compliance

On March 17, 2020, Ontario Premier Doug Ford enacted a Declaration of Emergency to Protect the Public. As the number of Coronavirus (COVID-19) cases in Ontario rose to 503, on March 23, 2020, Premier Ford subsequently ordered, pursuant to the declaration of emergency, that all non-essential businesses were required to close or remain closed effective 11:59pm on March 24, 2020 for a 14-day period, which may be extended. Later that day, a list of essential services was released by the provincial government (see link here).

Importantly, the Government of Ontario did not state that non-essential businesses must stop operating entirely, but that the business facility must physically be shut down. Ford also stated that, although a last resort, if people do not comply with these new isolation and closure policies, “…there will be consequences.” This leaves many owners of businesses asking, “Are there truly consequences and if so, what are they?”

Despite the expected anxiety felt by operators of businesses that are excluded from the essential businesses list, an order made by the Premier is lawful and warrants compliance.

The power to make and enforce such orders comes from the Emergency Management and Civil Protection Act (“EMCPA”), which empowers the Premier to declare that an emergency exists throughout all or part of Ontario. In times of declared emergencies, the EMCPA allows the Government of Ontario to make orders to promote health, safety and welfare of the people of Ontario, where an order will alleviate harm or damage and is a reasonable alternative to other measures that might be taken to address the emergency.

The broad emergency orders that the Government may make under the EMCPA include the following:

  • Implementing any emergency plans;
  • Regulating or prohibiting travel or movement to, from or within any specified area;
  • Evacuations;
  • Establishing facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals;
  • Closing any public or private place, including any business, office, school or other establishment or institution;
  • Authorizing facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency;
  • Using or procuring any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution;
  • Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources;
  • Authorizing, but not requiring, any reasonably qualified person(s) to render services;
  • Requiring collection, use or disclosure of information necessary to prevent, respond to or alleviate the effects of the emergency, subject to privacy laws; and
  • Taking such other necessary actions or measures in order to prevent, respond to or alleviate the effects of the emergency.

Section 7.0.11(1) of the EMCPA states the following repercussions for failing to comply or interfering with an order, such as the one made on March 23, 2020:

  • For individuals, a fine of not more than $100,000 and for a term of imprisonment of not more than one year.
  • For individuals who are a director or officer of a corporation, a fine of not more than $500,000 and for a term of imprisonment of not more than one year.
  • For corporations, a fine of not more than $10,000,000.

Pursuant to sections 7.0.11(2) and 7.0.11(3), a person can be found guilty of a separate offence on each day that the offence occurs or continues. Further, the above limits can be exceeded, as the applicable fine can be equal to the financial benefit gained by the person as a result of the commission of the offence.  

Police departments are given the power to enforce orders made under the EMCPA and have publicly made announcements that they will do so if need be. For example, the Toronto Police Service has stated that police will enforce these orders using powers given to them through the EMCPA and that they have their own discretion when determining the appropriate consequence. The penalty will be scaled accordingly to the severity of the offence, starting with fines of $750.

Non-compliance may also lead to additional repercussions other than fines or criminal charges. For example, offenders to these rules risk being excluded from loan offers or bail-outs from the Government.

For legal counsel about your employment rights and obligations as they relate to COVID-19, contact the team at Zubas + Associates Employment Lawyers at info@employment-lawyers.ca or 416-539-5844.