On December 30, 2019 the Supreme Court of Newfoundland and Labrador (the “NLSC”) released its decision in Re Norcon Marine Services Ltd. (“Norcon”) dismissing both an application by a debtor, Norcon Marine Services Ltd., for creditor protection under the Companies’ Creditors Arrangement Act (the “CCAA”), and a competing application by a secured creditor, the Business […]read more
COVID-19 Public Health Measures and Essential Services in Atlantic Canada
In response to the rising number of COVID-19 cases, provinces and territories across Canada have taken action to protect the public and “flatten the curve”. This article provides an explanation of the various measures taken by provincial governments in Atlantic Canada as it pertains to COVID-19, as well as information for employers with regard to what is considered an “essential” service or workplace in their respective jurisdictions.
Public Health Emergency vs. State of Emergency
On March 19, 2020, New Brunswick declared a state of emergency pursuant to the Emergency Measures Act. This legislation defines an emergency as a present or imminent event in respect of which the Minister of Public Safety “believes prompt coordination of action or regulation of persons or property must be undertaken to protect property, the environment or the health, safety or welfare of the civil population”. The Emergency Measures Act provides certain powers to the Minister during a state of emergency, including:
- Controlling or prohibiting travel to or from any area or on any road, street or highway;
- Ordering the evacuation of persons, livestock and personal property threatened by the emergency and making arrangements for their care;
- Authorizing any person to enter into any building or on any land without a warrant; and
- Fixing prices for food, clothing, fuel, equipment, medical or other essential supplies and the use of property, services, resources or equipment.
A state of emergency declared pursuant to this Act ends 14 days after the day on which it was declared, unless it is renewed by the Minister with approval of the Lieutenant-Governor in Council.
Newfoundland and Labrador
On March 18, 2020, Newfoundland and Labrador declared a public health emergency pursuant to the Public Health Protection and Promotion Act (“PHPPA”). Under this legislation, a public health emergency is defined as an “occurrence or imminent threat that presents a serious risk to the health of the population” where one of the following is present: a communicable disease, a health condition, a novel or highly infectious agent or biological substance, or the presence of a chemical agent or radioactive material. For greater clarity, COVID-19 is considered a communicable disease under PHPPA.
Unlike a state of emergency under the Emergency Measures Act, a public health emergency is declared by the regional Chief Medical Officer (“CMO”) and expires 14 days after it is made, though the declaration may be extended for consecutive periods of 14 days where the emergency continues to exist. Under the PHPPA, the CMO is given broad powers. As the province has seen thus far, these measures include: the closure of many businesses, restrictions on travel, mandatory self-isolation in certain circumstances, and the ability to fine or detain individuals and businesses who fail to abide by these measures.
In addition to the enumerated powers in the legislation, the CMO ultimately has the power “to take any measures reasonably necessary for the health and protection of the health of the population during the public health emergency.”
In contrast, a state of emergency under the Emergency Measures Act allows the provincial government to take extraordinary measures in response to an emergency. The powers afforded to the government under this piece of legislation are more stringent, and less discretionary. These powers include: controlling transportation as well as highways, evacuating individuals or personal property from an area of the province, and the acquisition and disposition of property. The Newfoundland and Labrador government has yet to declare a state of emergency, though this option is available if or when the government feels that it is necessary to do so.
On March 22, 2020, Nova Scotia declared a provincial state of emergency pursuant to subsection 12(1) of the Emergency Management Act due to the COVID-19 pandemic. The Act defines an emergency as “a present or imminent event in respect of which the Minister or a municipality, as the case may be, believes prompt co-ordination of action or regulation of persons or property must be undertaken to protect property or the health, safety or welfare of people in the Province.”
Once a provincial state of emergency is declared, the Minister of Municipal Affairs may do everything necessary for the protection of property and the health or safety of persons in the Province, including, but not limited to:
- Control or prohibit travel to or from an area or on a road, street or highway;
- Provide for the maintenance and restoration of essential facilities, the distribution of essential supplies and the maintenance and co-ordination of emergency medical, social and other essential services;
- Authorize the entry by a person into any building or upon land without warrant;
- Cause or order the evacuation of persons and the removal of livestock and personal property threatened by an emergency and make arrangements for the adequate care and protection thereof; and
- Regulate the distribution and availability of essential goods, services and resources.
A declaration of a provincial state of emergency remains in effect until 14 days after the date and time it is declared unless it is renewed or terminated early.
In contrast, a public health emergency can be declared under the Health Protection Act. The Act defines a public health emergency as “an imminent and serious threat to the public health that is posed by a dangerous disease or a health hazard.” The Minister of Health and Wellness may declare a public health emergency at the recommendation of the Chief Medical Officer (“CMO”) where the CMO reasonably believes that the public health emergency cannot be mitigated or remedied without the implementation of special measures. These special measures include, among others:
- Establishing a voluntary immunization program;
- Ordering the closing of any educational setting or place of assembly;
- Ordering the possession of a premises for temporary isolation or quarantine facility;
- Ensuring that necessities are provided to a person who is quarantined if the person has no alternative means of obtaining such necessities; and
- Ordering construction of any work or the installation of facilities required for this Section, including sanitary facilities
When the CMO determines that the public health emergency is over, the CMO shall advise the Minister of Health and Wellness of such, and the Minister may declare the emergency to be over.
Prince Edward Island
On March 16, 2020, Prince Edward Island declared a state of public health emergency under the Public Health Act (“PHA”) in order to ensure the province is taking all appropriate actions to prepare and mitigate the impacts of COVID-19. Under the PHA, a “public health emergency” means an “occurrence or imminent threat of a health hazard or disease that presents a significant risk to the public health.”
During a public health emergency, the Minister of Health and Wellness or its designate, on the advice of the Chief Public Health Officer, may take the following special measures:
- Issuing directions, for the purpose of managing the threat, to an institution, health facility, corporation, health care organization, operator of a laboratory, operator of an ambulance service, health professional or health care provider, including directions about:
- Identifying and managing cases;
- Controlling infection;
- Managing hospitals and other health care facilities and ambulance services;
- Managing and distributing equipment and supplies; and
- Administering immunizations as directed by the Chief Public Health Officer.
- Order the owner or occupier of any place or premises to deliver up possession of the place or premises to the Minister for use as a temporary assessment, treatment, isolation or quarantine facility;
- Order a public place or any premises to be closed;
- Ordering persons to refrain from assembling in a public gathering in a specified area, limit the number of persons who will be permitted to attend a public gathering, or limit the purpose for a public gathering.
The state of public health emergency is effective for 30 days but can be terminated earlier or continued.
In contrast, a declaration of state of emergency under the Emergency Measures Act empowers the provincial government to do everything necessary for the protection of property, the environment and the health or safety of persons therein, including the following:
- Authorizing or requiring any qualified person to render assistance of such type as that person may be willing and qualified to perform;
- Control or prohibit travel to or from any area or on any road, street or highway;
- Prohibit persons from entering into or upon any building, structure, premises, land, place or area;
- Procure food, clothing, fuel, equipment, medical or other essential supplies and the use of property, services, resources or equipment; and
- Order the assistance, with or without remuneration of persons needed to carry out measures related to the emergency, with or without remuneration.
In the event that a state of emergency was declared under the Emergency Measures Act, it would take precedence over the current declaration of a state of public health emergency under the PHA.
Prince Edward Island has not yet exercised its ability to declare a state of emergency under the Emergency Measures Act. However, this option remains open to the province to do so when it is determined to be required.
What is an “Essential” Service?
In response to the growing number of COVID-19 cases in Canada, many Premiers across the country have mandated the closure of all “non-essential” workplaces. While the definition of an “essential” service differs among the provinces and territories, the federal government has deemed an essential worker as those that are “critical to preserving life, health and basic societal functioning.” These workers include: first responders, health-care workers, critical infrastructure workers, hydro and natural gas workers, and workers who are supplying society with necessary goods such as food and medicine.
While the New Brunswick Emergency Measures Act does not define essential services for the purposes of the state of emergency, the Declaration of a State of Emergency and Mandatory Order, which was issued on March 19, 2020, provides guidance with respect to businesses that may continue to operate or admit patrons. The Minister issued a Renewed and Revised Mandatory Order on March 25, 2020. The Order provides that certain businesses may remain open and continue to admit patrons provided they take every reasonable step to ensure minimal interaction of people within 2 meters of each other and comply with advice issued by the Chief Medical Officer of Health. These businesses include, but are not limited to, the following: stores selling predominantly food, medication, or fuel; post offices; financial and lending institutions; hotels; construction and maintenance operations; cleaning services; bus, taxicab and delivery services; plumbing, electrical, and environmental clean-up businesses; and vehicle rental agencies.
The Order prohibits food and beverage businesses from allowing on-premises dining (although they can do take-out and delivery). Lounges, special facilities, clubs and uvin/ubrews licensed under the Liquor Control Act are prohibited from admitting patrons. All recreational facilities, like pools, waterparks, gyms, and yoga studios, are prohibited from admitting patrons, as are other aesthetics services providers, hair salons and barbershops. All schools (including private schools), colleges, universities and childcare operators are required to close to students, unless they are providing care to children of essential workers.
The Order also prohibits regulated health professionals from providing in-person services other than services they deem essential for the health and wellbeing of their clients. According to the Order, all unnecessary travel into New Brunswick is prohibited, and those entering the province must self-isolate for 14 days. This prohibition and required self-isolation does not extend to residents from other provinces who must travel through New Brunswick to work or receive medical treatment, commercial vehicle drivers delivering goods, or residents of Campobello Island entering to access essential goods or services. For a full list of exemptions, see the Renewed and Revised Mandatory Order issued March 25.
Newfoundland and Labrador
While the phrase “essential services” is not particularly defined in Newfoundland and Labrador legislation, the provincial government has considered essential services as those that are “essential to life, health or personal safety of individuals and animals.” Accordingly, the following businesses are allowed to remain open: grocery stores, pharmacies, gas stations, restaurants (take-out or delivery only), hardware stores, animal food supply stores, office supplies and electronics stores, stores that sell cleaning supplies and those that sell personal hygiene products.
The provincial government has deemed the following workers to be “essential”: health care workers, paramedics, firefighters, police and corrections workers, early childhood educators providing child care services to essential workers, and any other public servants required to work during this pandemic.
Essential services are not defined in either the Emergency Measures Act or the Health Protection Act in Nova Scotia. However, Nova Scotia Premier Stephen McNeil has clarified which essential service sectors must remain open:
- Food, agri-foods and fisheries
- Social services
- Unlicensed child-care
- Transportation, including trucking, rail and transit
- Construction and manufacturing
- IT, telecommunications and critical infrastructure
- Public services such as police, fire and ambulances
The Government of Nova Scotia website also offers the following online tool to help businesses determine if they are providing an essential service and can therefore remain open. The tool states that where a business is able to stay open, employees must practice social distancing protocols (currently 2 meters) and workspaces and other high-touch surfaces must be cleaned and disinfected twice a day, or as needed. Nova Scotia’s Chief Medical Officer has ordered that social gatherings must be limited to no more than five people, but that this does not apply to private businesses. However, businesses that cannot observe the social-distancing rule due to their size must limit the number of customers or clients on its premises to no more than five. Although not technically required for all employers, restricting in-person meetings to less than five people is good practice.
On March 27, 2020, the Minister of Municipal Affairs further clarified that municipally operated public transit systems were essential services required to operate during the state of emergency.
Prince Edward Island
Although the phrase “essential services” is not defined in the applicable legislation, the Prince Edward Island government has defined it to mean “services that the interruption of which would endanger the life, health or personal safety of the whole or part of the population.”
The province has provided a useful guide of businesses and workers that constitute essential services. This guide names the following as essential services: financial services (e.g. banks and capital markets), food services (e.g. grocery stores, convenience stores, and take-out or delivery only restaurants), health and wellness (e.g. pharmacies, urgent dental care, and health care), household needs (e.g. hardware stores and garbage collection), key personal services (e.g. auto repair shops, public transit, post offices and pet stores, among many others), key public services (e.g. municipal and provincial governance, maintenance of utilities), supply chain (e.g. agriculture and manufacturing) and finally, other services such as construction, telecommunications and professional services (e.g. engineering, legal, accounting).