Ontario Declares Emergency in Light of COVID-19

On March 17, 2020, the Ontario government declared an emergency as a result of COVID-19. It ordered the immediate closure of a number of venues, as well as enhanced funding for the province’s response to COVID-19.

Ontario – Declared Emergency

Further to the declaration of emergency, the government ordered the immediate closure of the following establishments:

facilities providing indoor recreational programs
public libraries
private schools as defined in the Education Act
licensed child care centres
bars and restaurants, except to the extent that such facilities provide takeout food and delivery
theatres including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies
concert venues.

The government has prohibited all organized public events of over 50 people, including parades, events and communal services within places of workshop.

These orders are to remain in place until March 31, 2020, at which point they will be reassessed.

The Ontario government also announced enhanced funding for its COVID-19 response. Among other things, this includes increased funding for:

hospitals, to assist with the treatment of COVID-19 patients in critical care and medicine beds
more testing and screening through public health
personal protective equipment and other critical supplies for frontline workers
support to frontline workers working in COVID-19 assessment centres
support for long-term care homes in terms of 24/7 screening and additional staff to support cleaning and infection control
residential facilities in development services, gender-based services and protective care for children and youth
Indigenous communities.

What Does a Declared Emergency Mean?

Under the Emergency Management and Civil Protection Act (EMCPA), the Premier and the Lieutenant Governor in Council (LGC) may declare an emergency where the following criteria are satisfied:

There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.
One of the following circumstances exists:

- The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay.
- The resources referred to in subparagraph i may be insufficiently effective to address the emergency.
- It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph i can be relied upon. (EMPCA, section 7.0.1(3))

“Emergency” is defined in the EMCPA and includes “a disease or other health risk,” which would include COVID-19.

Considerable powers are given to the Premier and the LGC during a declared emergency to issue orders which are “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property” where such an order will alleviate the risk or is a reasonable alternative to other actions. The EMCPA sets out the types of orders that may be made (e.g. closing any place, prohibiting travel) but also permits other measures to be taken where considered necessary to “prevent, respond to or alleviate the effects of the emergency.”

Failure to comply with orders under the EMCPA can result, in the case of an individual, in a fine of not more than $100,000 and a term of imprisonment of not more than one year. An individual who is a director or officer of a corporation may be subject to a fine of not more than $500,000 and a term of imprisonment of not more than one year. Corporations may be subject to a fine of not more than $10,000,000.

The Employment Standards Act, 2000 – Declared Emergency Leave

The Employment Standards Act, 2000 (ESA) provides for a leave of absence in a declared emergency, which has occurred today.

Subject to the criteria set out below, employees may be able to claim entitlement to an unpaid “Declared Emergency Leave.” This leave gives employees the right to a leave of absence where an employee is unable to perform the duties of their own position because of a declared emergency.

To qualify for entitlement under these provisions of the ESA, employees must be unable to work because:

they are subject to an order under the EMCPA
they are subject to an order under the Health Protection and Promotion Act (HPPA)
they are needed to provide care or assistance to a specified individual, or
such other reasons as may be prescribed.

With respect to the first point, today the government ordered that certain venues be closed. Employees of these establishments will be entitled to take an unpaid job-protected leave of absence. In order to access this leave, employees are required to notify their employer that they are taking a Declared Emergency Leave, although a failure to notify will very likely not disentitle the employee from the leave.

The second point relates to section 22 of the HPPA, which gives medical officers of health the power to order individuals to take, or refrain from taking, any action specified in such orders. These orders can be quite broad and can include: orders to be quarantined, orders to submit to an examination by a physician, or orders to conduct oneself in such a manner so as not to expose another person to infection.

The third point applies to the same list of employees covered under the family responsibility leave:

The employee’s spouse.
A parent, step-parent or foster parent of the employee or the employee’s spouse.
A child, step-child or foster child of the employee or the employee’s spouse.
A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
The spouse of a child of the employee.
The employee’s brother or sister.
A relative of the employee who is dependent on the employee for care or assistance.

For example, employees who are unable to work in order to provide care to their children in light of the orders closing daycares, could be entitled to take an unpaid Declared Emergency Leave.

A Declared Emergency Leave generally ends the day the declared emergency is terminated or disallowed. The employee’s right to the leave will usually end at the same time. This is subject to a few exceptions, including where an employee is exercising the right to Declared Emergency Leave to care for a specified individual.

The ESA prohibits reprisal against employees for accessing Declared Emergency Leave, as it does with the other job-protected leaves under the ESA. Declared Emergency Leaves are subject to all of the usual ESA protections granted to employees on leaves including, for example, benefits continuation during the leave if the employee continues to pay their portion of the premiums.

If an employer is contemplating a temporary layoff, consideration must be given to how the layoff will interact with the employer’s obligations to provide statutory leaves under the ESA. Generally speaking, employees who are entitled to a leave of absence under the ESA cannot be laid off while they are entitled. This issue can be quite complex to address, and employers are encouraged to seek legal advice before making a decision to issue layoff notices.

Conclusion

Matters continue to develop at a very fast pace during the ongoing pandemic. We will continue to provide guidance to clients in response to changing circumstances.

As always, please contact Paul Broad at 416.864.7286, Amanda Cohen at 416.864.7316, Carey O’Connor at 416.864.7020, Stephanie Jeronimo at 416.864.7350, or your regular Hicks Morley lawyer for advice on any of these issues.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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