January 18, 2021
On January 12, 2021, the Ontario Government issued a second state of emergency declaration under s. 7.0.1(1) of the Emergency Management and Civil Protection Act (the “EMCPA“) in response to the ongoing COVID-19 pandemic. Under the EMCPA the emergency declaration will automatically terminate after 14 days unless it is extended (or terminated early).
As part of the emergency order, the Government has issued a stay-at-home order as well as new enforcement provisions under the EMCPA. The Government has also issued Ontario Regulation 10/21 to amend O. Reg. 82/20: RULES FOR AREAS IN STAGE 1 to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. The amendments came into effect on January 14, 2021. The previous rules under the Rules for Areas in Stage 1 remain largely in place subject to certain additions and changes made via the amendments as discussed below.
Stay-at-home order and remote work
As stated above, under the EMCPA the Government has issued a stay-at-home order (O. Reg. 11/21: STAY-AT-HOME ORDER). The stay-at-home order took effect at 12:01 a.m. on January 14, 2021 (see s. 2). Under the stay-at-home order, individuals are to remain in their place of residence at all times outside of certain specified purposes. Generally persons may leave their residence for work (where the nature of the work requires an individual to leave their residence including where the individual’s employer has determined that the nature of their work requires attendance at the workplace), education, child care, to obtain goods and services (such as to pick up groceries and food, attend at medical appointments and obtain medications), for the purpose of exercise, to assist others, to access financial services and to respond to or avoid an imminent risk to the health and safety of an individual.
Related to this the amended Rules for Areas in Stage 1 creates somewhat of an enhanced requirement or obligation for workers to work remotely. Specifically, under s. 2.1(1) of O. Reg. 82/20: RULES FOR AREAS IN STAGE 1 workers are required to work from home except where attendance at work is necessary. S. 2.1(1) states: “Each person responsible for a business or organization that is open shall ensure that any person who performs work for the business or organization conducts their work remotely, unless the nature of their work requires them to be on-site at the workplace.” This requirement does not apply to the operations or delivery of services by a government or “any person or publicly-funded agency or organization that delivers or supports government operations and services, including operations and services of the health care sector”.
Even for businesses that may remain open, this requirement arguably requires employers to reassess whether workers may work remotely.
Outdoor gatherings are now limited to 5 persons. Indoor organized public gatherings and/or social events are not permitted aside from certain exceptions for weddings, funerals and religious ceremonies.
Elementary and secondary schools in the following public health regions are to continue remote learning until February 10, 2021: Toronto Public Health, Peel Region Public Health, York Region Public Health, Windsor-Essex County Health and Hamilton Public Health Services.
In-person learning in elementary and secondary schools resumed on January 11, 2021 in the following public health regions: District of Algoma Health Unit, North Bay Parry Sound District Health Unit, Northwestern Health Unit, Porcupine Health Unit, Sudbury and District Health Unit, Thunder Bay District Health Unit and Timiskaming Health Unit.
All other public health regions will continue remote learning for now. The Government has stated that the Chief Medical Officer of Health will advise as to which regions may return to in-person learning by January 20, 2021.
Child care for children who are not school aged continues to be open.
Businesses that may remain open
Schedule 2 of the amended O. Reg. 82/20: RULES FOR AREAS IN STAGE 1 to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 sets out the businesses that may remain open. As previously stated, many of the businesses that could previously remain open under Stage 1 can still remain open in the state of emergency. However, we have noted some key changes below.
Retail, shopping, food
Some stores continue to be open for in-person shopping but they have reduced capacity restrictions. Specifically, the following categories of stores may be open with 50% capacity: supermarkets, grocery stores, convenience stores, indoor farmer’s markets and other stores that primarily sell food, and pharmacies. The following categories of stores may be open at 25% capacity: discount and big-box retailers that sell groceries and stores that sell beer, wine and spirits.
In-store shopping is also permitted by appointment only at the following: safety supply stores, businesses that sell, rent or repair assistive, mobility or medical devices, aids or related supplies, optical stores that sell prescription eyewear, businesses that sell cars, trucks, motorcycles and other motor vehicles. Such operations are on reduced hours and must open no earlier than 7 a.m. and close no later than 8 p.m.
Shopping malls may only be open to provide access to grocery stores, pharmacies and health care services, such as a dentist’s office or to pick up purchases from a designated pickup area either: indoors, by appointment only or outdoors, with no prior appointment needed. Shopping malls have reduced hours and must open no earlier than 7 a.m. and close no later than 8 p.m. except to provide access to grocery stores, supermarkets, pharmacies and health care providers that only have public entrances which face the interior of the mall.
Retail businesses may continue to offer curbside pickup and delivery. The business must have a public entrance that opens onto a street or exterior sidewalk or in the case of a business in a shopping mall permit patrons to pick up the items at a designated location established by the shopping mall. Retail businesses are required to operate under reduced hours. They must open no earlier than 7 a.m. and close no later than 8 p.m. Curbside pickup items must be ordered in advance of the person arriving at the business for pickup.
Restaurants, bars and other food or drink establishments may continue to be open for take-out, drive-through and delivery.
For clarity, the reduced hours of 7 a.m. to 8 p.m. for retail operations do not apply to supermarkets, grocery stores, convenience stores, indoor farmer’s markets and other stores that primarily sell food, discount and big box retailers that sell groceries, pharmacies, gas stations and restaurants for take-out and delivery only.
Notably, the list of construction activities, projects or services that may remain open has been narrowed.
Update: additional changes to the construction activities, projects or services that may remain open under the Stage 1 Rules were introduced via O. Reg. 14/21 on January 15, 2021. These changes came into effect on January 15, 2021.
Under the amended provision, s. 43 permits the following construction services to remain open:
43. Construction activities or projects and related services, including land surveying and demolition services, that,
(a) are associated with the health care sector or long-term care, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space;
(b) ensure safe and reliable operations of, or provide new capacity in,
(i) municipal infrastructure, or
(ii) provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors;
(c) support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage or in the supply of resources;
(d) support the operations of, or provide new capacity in, schools, colleges, universities or child care centres within the meaning of the Child Care and Early Years Act, 2014;
(e) are required for,
(i) the maintenance and operations of petrochemical plants and refineries,
(ii) significant industrial petrochemical projects where preliminary work commenced before January 12, 2021, or
(iii) industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance or enhancement of personal protective equipment, medical devices such as ventilators and other identified products directly related to combatting the COVID-19 pandemic;
(f) would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;
(g) were commenced before January 12, 2021 and that would,
(i) provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping and delivery services, or
(ii) provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services;
(h) support the operations of broadband internet and cellular technologies and services;
(i) are related to residential construction projects where,
(i) a building permit has been granted for a single family, semi-detached and townhomes,
(ii) the project is a condominium, mixed-use or other residential building, or
(iii) the project involves renovations to residential properties and construction work that was started before January 12, 2021;
(j) prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure;
(k) are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety;
(l) are funded in whole or in part by,
(i) the Crown in right of Canada or in right of Ontario,
(ii) an agency of the Crown in right of Canada or in right of Ontario, or
(iii) a municipality;
(i) intended to provide shelter or supports for vulnerable persons or affordable housing; and
(ii) being funded in whole or in part by, or are being undertaken by,
(A) the Crown in right of Canada or in right of Ontario,
(B) an agency of the Crown in right of Canada or in right of Ontario,
(C) a municipality,
(D) a service manager as defined the Housing Services Act, 2011, or
(E) a registered charity within the meaning of the Income Tax Act (Canada), or
(F) a not-for-profit corporation.
Services and Entertainment
Concert venues, theatres and cinemas (including drive-in and drive-through events), golf courses and driving ranges must now be closed.
Individual Masking and Physical Distancing Obligations
The amended O. Reg. 82/20: RULES FOR AREAS IN STAGE 1 to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 introduces new obligations on individuals with respect to masking and physical distancing. Previously, these obligations were only placed on the person responsible for a business or organization that was allowed to remain open.
Specifically, every person in the premises of a business or organization that is open must now wear a mask or face covering that covers their mouth, nose and chin during any period in which they are in an indoor area of the premises, subject to certain exceptions (for instance, children under 2 or those with medical conditions that prevent them from wearing a mask or face covering). In addition, every person in a place of business or facility that is open to the public shall maintain physical distancing of at least two metres from every other person except for their caregiver and/or members of their household, subject to certain exceptions (for instance, passing persons in a hallway).
New enforcement measures have been introduced via O. Reg. 8/21: ENFORCEMENT OF COVID-19 MEASURES to the EMCPA.
A police officer or other provincial offences officer who has reasonable and probable grounds to believe that an individual has committed an offence under s. 7.0.11 of the EMCPA may require the individual to provide their correct name, date of birth and address and the individual must promptly comply.
A police officer or other provincial offences officer may order that premises be temporarily closed if they have reasonable grounds to believe that an organized public event or other gathering is occurring and that the number of people in attendance exceeds the number permitted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. Every individual on the premises must promptly comply with the order and vacate the premises.
A police officer or other provincial offences officer may order an individual attending an organized public event or gathering that is prohibited under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 to cease attending the organized public event or gathering and may order individuals to disperse. Individuals must promptly comply with such an order.
If you have questions or need any further information as to how this may affect you, please do not hesitate to contact our office.
The new and amended orders and regulations may be accessed below: