Ontario Releases Essential Services Criteria as Business Lockdown Begins

March 25, 2020

Following Premier Ford’s announcement of a province-wide lockdown on Monday, the Government of Ontario has released a list of “essential workplaces” that will be exempt from the requirement to cease operations as of midnight tonight (Tuesday, March 25, 2020). The list includes 74 separate business categories that are described in considerable detail. The accompanying press release reminds exempt employers that they must have physical distancing and hand-washing protocols in place.

Update: The Government has now released the list as Regulation 82/20 under the Emergency Management and Civil Protection Act. To better reflect the structure of the finalized Regulation, we have added the section “Business Closure Rules” and made changes to the first part of the section that follows it. We would also note that,  to assist Ontario businesses, a “Stop the Spread Business Information Line” has been established at 1-888-444-3659. (March 25, 2020)

Business Closure Rules (Schedule 1)

Regulation 82/20 consists primarily of two Schedules. Schedule 1 begins with the key provision: that as of 11:59 on March 24, 2020, that those who are responsible for non-essential workplaces must ensure that they are closed. However, the Schedule also makes three key clarifications:

  • Section 1(2) allows temporary access to a closed place of business for a range of purposes, including maintenance, inspections, repairs and security checks as well as accessing goods or supplies that are needed to operate the business remotely.
  • Section 1(3) states that the Regulation does not preclude the remote operation of a non-essential business by telephone or by means of mail or other forms of delivery, pick-up arrangements, etc.
  • Section 1(5) allows any business, whether classified as an essential workplace or not, to continue to support the operations of government, including the health care sector.

Essential Workplaces (Schedule 2)

Schedule 2 contains an extensive list of essential workplaces, including a supply chain exemption that applies to businesses that supply other essential businesses with support, supplies, systems or services that are necessary for them to operate (e.g. processing, packaging, delivery and maintenance).

The list of essential workplaces includes the following, among others, with considerable additional detail about each in the Regulation itself: 

  • Retail and wholesaling
  • Food services and accommodations
  • Institutional, residential and industrial maintenance
  • Telecommunications and IT/Infrastructure service providers
  • Transportation
  • Manufacturing and production
  • Agriculture and food production
  • Construction
  • Financial activities
  • Resources, including mining
  • Environmental services
  • Utilities and community services
  • Communications industries
  • Research
  • Health care and seniors care and social services
  • Justice sector
  • Business inspections
  • Other businesses, such as leasing and rental services; mail and courier services; professional services; mortuary services; security services; staffing services; health and welfare of animal services and certain child-care services

The detailed list clarifies the extent to which each of the categories is exempt. Certain industries are exempt primarily with respect to those activities that contribute to an essential supply chain, which is one of the aspects of the essential workplaces announcement that will need to be analyzed further by many businesses.

As noted above, in the press release accompanying the list, the government emphasizes that “essential businesses are being asked to put into place any and all measures to safeguard the well-being of their employees on the front-lines.”

Workplaces That Are Not on the List?

The order encourages business that are not on the list to find alternative means of continuing operations by specifically mentioning that “the order does not preclude the provision of work and services by entities not on the list either online, by telephone or by mail/delivery.” Not surprisingly, remote work and online commerce are also encouraged for all businesses.

The information published by the government does not indicate whether there will be a process for businesses to be added to the list or a means to seek clarification as whether their business is an essential workplace.

Supply Chain Implications

The essential services orders and decrees that have been put in place by the provinces (Ontario, Quebec and Prince Edward Island) have some variations and differing degrees of detail. Although the major categories of businesses, goods and services are generally the same, the detailed variations may raise questions for businesses operating in a complex cross-jurisdictional supply chain.  

None of the provinces limit the goods or services to those provided within the respective province which promotes the continuation of the supply chain outside of provincial borders. However, the reverse may be more challenging if the supplier to an essential business is located in a different jurisdiction and that supplier is not an essential business in its own jurisdiction. 

Essential workplaces and other businesses operating remotely or through online commerce that are reviewing their supply chain risks should identify potential issues relating to these jurisdictional differences that are emerging as provinces and U.S. states look to impose similar restrictions.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

Stay in Touch with Knowledge Hub