In Choice Properties Limited Partnership v Penady (Barrie) Ltd., 2020 ONSC 3517, the Ontario Superior Court of Justice weighed in on what constitutes a fair and reasonable sale procedure during the ongoing COVID-19 pandemic.read more
Newfoundland and Labrador’s COVID-19 Response – Information for Businesses
This article was revised to include updates as of June 8, 2020
On March 18, 2020, the Minister of Health and Community Services for Newfoundland and Labrador declared a Public Health Emergency under the Public Health Protection and Promotion Act. This declaration continues in effect; along with the accompanying Orders under the Act, and has had a profound effect upon the daily lives of everyone in the province, as well as on businesses and other organizations.1
In this article we answer some frequently asked questions by businesses about the Public Health Emergency, including how restrictions apply to businesses in Newfoundland and Labrador, and how these rules will be changing with the announcement on 30 April of the Government’s “NL Life with Covid-19” program for relaxing restrictions.
Background – Public Health Emergency
While a Public Health Emergency under the Public Health Protection and Promotion Act is in effect, the Chief Medical Officer of Health has significant powers “for the purpose of protecting the health of the population and preventing, remedying or mitigating the effects of the public health emergency”.2 This includes the power to make various orders that have legal effect once issued.
In addition to these orders, the House of Assembly on 26 March also passed the Covid-19 Pandemic Response Act.3 This was omnibus legislation which did the following:
- Amended the Labour Standards Act to create a right to a leave of absence from employment without pay for a list of reasons relating to the pandemic, including being required to self-isolate or quarantine in compliance with an order of the Chief Medical Officer of Health, or to provide care to family members for reasons relating to the pandemic
- Extended the period under the Residential Tenancies Act for eviction on nonpayment of rent to 30 days (from 3 or 5 days)
- Created a new Temporary Variation of Statutory Deadlines Act, this provided the Government with the flexibility to issue orders to extend deadlines in legislation.4
Since 26 March, the Government has issued a number of orders under the Temporary Variation of Statutory Deadlines Act, to postpone activities which were required to be completed currently or in the near future (such as legislative reviews) as well as to extend timeframes such as an extension of many time periods for legal actions under the Limitations Act.5
The Government has also issued orders under other pieces of legislation which relate to the Covid-19 pandemic. For example, on 22 April the Government announced a ban on open fires on forest land, or within 300 metres of forest land for all regions of the province. The ban includes grass burning, brush burning, campfires and personal fireworks. Gas barbeques and CSA approved patio wood burning devices are excluded from the ban, but people also have to comply with any municipal ban that may locally be in place for these devices.6
On 5 May the House of Assembly passed further pandemic-related legislation:
- Amendments to the Liquor Control Act and the Liquor Corporation Act, creating the ability for licensees to deliver alcoholic beverages with meals, and for brewers, wineries and distilleries to deliver products, to customers for consumption.
- Creation of a new Temporary Alternative Witnessing of Documents Act, which temporarily amends the Commissioner of Oaths Act, the Notaries Public Act, the Registration of Deeds Act, 2009, and the Wills Act, to permit the witnessing of the execution of documents through audio-visual technology, as opposed to being in person, subject to certain restrictions.
- Amendments to the Temporary Variation of Statutory Deadlines Act, passed on 26 March, to clarify its expiration date is 30 September 2020.
- Amendments to the Public Health Protection and Promotion Act, to clarify the powers of peace officers (including police) to locate individuals in contravention of measures ordered under the Act, take them into custody, and convey them to a location including a point of entry in the province.
Background – “NL Life with Covid-19”
On 30 April the Government announced NL Life with Covid-19, a program to ease back on restrictions that have been imposed under the Public Health Emergency. The plan is for a 5 “Alert Level” program, with restrictions being eased and relaxed as the Government moves through the Alert Levels from 5 to 1, which process will be determined by monitoring the following factors: (i) the spread of COVID-19; (ii) the ability to test, trace and isolate all cases; (iii) the health system’s readiness to handle any surge in COVID-19 cases; (iv) the risk of outbreaks; (v) workplace preparedness to protect the health and safety of staff and the public; (vi) identification and isolation of travel-related cases; and (vii) community readiness to live with COVID-19. Regular movement through the various Alert Levels is not guaranteed, and reversion to a more restrictive Alert Level may be required depending upon the assessment of the factors noted above.
The province is currently at “Alert Level 3”. A timetable for a move to “Alert Level 2” is not yet known.
Q. What businesses have been ordered to close? What is the plan for their being able to re-open?
A. The following have been ordered to be closed, and remain closed during Alert Level 3:
- Gyms and fitness facilities, including yoga studios, tennis and squash facilities; dance studios; cinemas; performance spaces; arenas; and bingo halls7;
- businesses that hold a license under the Liquor Control Act whose primary purpose is the consumption of beer, wine, or spirits and that do not otherwise qualify as an exception under this Order.8
Under Alert Level 3, as of Monday 8 June, the following changes occurred:
- Restaurants may open for in-person dining at reduced occupancy where physical distancing of 2 metres between patrons seated at adjacent tables may be maintained
- Campsites are permitted to open for day use and limited overnight use
- Medium-risk outdoor recreational activities can resume with spectators maintaining physical distancing
- Outdoor pools can operate with a limited number of people
- Private health care clinics can reopen in accordance with guidelines
- Retail stores, including those in shopping malls, can open with restrictions
- Animal grooming facilities can resume operations
Q. What are the restrictions on gatherings? How does that apply to my business operations?
A. Gatherings of more than 20 people are prohibited.9 For businesses that were not specifically ordered to be closed, the “gathering” restriction has not applied to the workplace; however, businesses are required to ensure physical distancing guidelines and cleaning protocols are complied with. It is recommended that employers permit employees to work from home where possible.
Q. Can I or my employees travel for business?
A. While non-essential travel is discouraged, it is possible to travel out of the province for business. However, any traveler will have to comply with the travel restrictions in place at the destination of travel, which could include requirements to self-isolate; you are strongly advised to fully review any such requirements before contemplating such travel. Upon a return to the province from any destination outside the province, you will be required:
- to self-isolate for 14 days.10
- to complete and submit a declaration form to a government representative at their point of entry to the province, provide specifics of the plan for complying with the requirement to self-isolate for 14 days; and be available for contact with public health officials during the duration of the 14-day self-isolation period.11
This will be in addition to being required to demonstrate residency as a condition of being admitted to the province as a result of the restrictions on non-residents announced on 4 May.
Q. What are the exemptions on the requirements to self-isolate?
A. There are various exemptions and modifications to the requirement to self-isolate for 14 days for workers in various businesses and industries. Note that these exemptions will also be exemptions to the restrictions on non-resident travel announced on 4 May:
- The following groups are permitted to travel to the province, and do not have to self-isolate while travelling to their place of work in the province, but otherwise have to self-isolate when not at work in the province:
- asymptomatic workers arriving in the province from elsewhere in Canada who work in the trade, transportation, mining, agriculture, hydro-electric and oil & gas sectors, including truck drivers and the crews on any planes or vessels, including fish harvesting vessels;
- asymptomatic workers essential to the critical maintenance of the province’s infrastructure in the trade, transportation, healthcare, agriculture, fishing and aquaculture, hydroelectric, mining and oil and gas sectors;
- asymptomatic workers essential to the provision of critical health care in the province, including organ retrieval teams, medical flight specialists, crew on any plane serving as an air ambulance or medivac operation,
- The following groups are also exempt from the requirements to self-isolate and the restrictions on non-resident travel:
- individuals crossing the Labrador border from neighbouring communities for work or healthcare-related reasons; and
- individuals travelling to and from residences in the province and the offshore oil & gas facilities.12
- Asymptomatic workers who reside in the province but work elsewhere in Canada and return to the province do not have to self-isolate while travelling from their place of work to home but must otherwise self-isolate (with the exception that workers from the oil sands work camp at Kearl Lake, Alberta, who must immediately self-isolate upon arriving in the province).13
There is no timetable for any lessening of these travel restrictions – relaxation of these restrictions is not part of the “NL Life with Covid-19”plan or the actions associated with different Alert Levels.
Q. What does “self-isolation” mean?
A. The Public Health Protection and Promotion Act defines isolation to mean separating a person who has, or is suspected of having, a communicable disease from contact with people who are not infected.14 Along these lines the Government has been referring to “self-isolation” to be the process of physically separating from other individuals to protect against disease transmission including the following requirements:
- staying at home, not using public transportation or taxis and not going to work, school or other public places.
- only having visitors in your home who must absolutely see you
- limiting contact with seniors and other individuals with chronic medical conditions such as diabetes, lung problems or immune deficiency.
Q. Can people travel to the province to do business with me?
A. As of 4 May, the answer is most likely no.15 Travel to the province will be restricted to:
- residents of Newfoundland & Labrador;
- asymptomatic workers in critical industries previously subject to an exemption;
- individuals with a special exemption granted by the Chief Medical Officer of Health.
Further exemptions have now been granted to individuals (provided they make a formal request to the Chief Medical Officer):
- who have a significant injury, condition or illness and require the support of family members resident in Newfoundland and Labrador;
- who are visiting a family member in Newfoundland and Labrador who is critically or terminally ill;
- to provide care for a family member who is elderly or has a disability;
- to permanently relocate to the province;
- to fulfill a short term work contract, education internship or placement;
- who are returning to the province after completion of a school term out of province; and
- to comply with a custody, access, or adoption order or agreement.
Entry by any other person is prohibited. The previous exemptions to self-isolation requirements on travel (listed above) will continue to apply; these individuals will continue to be permitted to enter the province. There is no timetable for the lessening of these travel restrictions – relaxation of these restrictions is not part of the “NL Life with Covid-19”plan or the actions associated with different Alert Levels. Also note that these travel restrictions as implemented by the Government are in addition to national border travel restrictions implemented by the Government of Canada under the federal Quarantine Act.16 These include, as of 24 March 2020, the requirements for anyone entering Canada to self-isolate for 14 days, and restricting travel into Canada including across the border with the US.17
Q. How do the restrictions on personal care homes, long term care facilities, and assisted living facilities operate for employers?
A. Personal care homes, long term care facilities and assisted living facilities are subject to various restrictions on operations and who they can employ. On 14 April, it was ordered that operators of personal care homes and long term care facilities are prohibited from employing staff who work across multiple personal care homes and long term care facility locations, and are further prohibited from employing staff who have other employment simultaneous with working at the facility, unless required in exceptional circumstances and for which an exception has been granted.18 This means employers of these facilities are justified in requiring all employees, as a condition of continued employment, to disclose any other employment that the employee may have, whether at other facilities, or of any other kind. If the employer does not have confirmation of this information from an employee, the employer should refuse to permit that employee to report to work or otherwise to enter the facility. Should an employee identify an alternate employer, then that employee will have to elect whether they will continue in the employ of the personal care home or choose the other employer for at least the duration of the restriction. Also as of 29 April, operators at “assisted-living facilities” were subject to other restrictions on admissions and visitors, and requirements for screening.19 These restrictions will be in place for the foreseeable future; the “NL Life with Covid-19” plan does not contemplate the relaxation of these restrictions until the province reaches Alert Level 1. Further complicating matters is that the scope of employers subject to these restrictions is not entirely clear, as while “personal care home” is a term defined under the Personal Care Home Regulations20, neither “long term care facility” nor “assisted living facility” are defined under provincial legislation.
Q. Can I be charged with an offence for not complying with a prohibition above in a “Special Measures Order”?
A. Yes. Failing to comply with the requirements of the Special Measures Order (such as self-isolation when entering the province) is an offence under the Public Health Protection and Promotion Act.21 The fine on a conviction for a first offence for a person is a fine between $500 and $2,500, with the possibility as well of imprisonment for up to six months. On subsequent offences, the fine rises to between $500 and $5,000, along with the possibility as well of imprisonment for up to six months. Businesses failing to comply with the Special Measure Order (such as opening when prohibited) can be subject to a fine of $5,000 to $50,000 on first offence, and up to $100,000 on subsequent offences. Prosecution of such offences would be governed by the process and procedures of the Provincial Offences Act.
Q. Can police arrest persons who violate a “Special Measures Order”?
A. Yes. As a provincial offence under the Public Health Protection and Promotion Act and the Provincial Offences Act22, police officers have powers of arrest in certain circumstances. They also have the power to issue tickets for offences. Under the amendments to the Public Health Protection and Promotion Act that came into effect on 5 May, peace officers also have significant powers of search and seizure without a warrant, and may detain individuals who are in violation of public health measures and escort them to points of entry into the province.
If you are an employer who has concerns as to whether or how these requirements apply to you, or how to comply with these requirements, you should seek legal advice. Do not hesitate to contact us at email@example.com or to contact any of our Newfoundland and Labrador team.
1 The current Order can be found at https://www.gov.nl.ca/covid-19/files/Public-Health-Emergency-Extension-Declaration-May-29-2020.pdf
2 Public Health Protection and Promotion Act, SNL 2018 c.P-37.3 (“PHPA”), s 28.
3 SNL 2020, c.C-37.03
4 SNL 2020, c.T-4.02
5 The Newfoundland and Labrador Gazette, (2020) NL GAZ I, 93 https://www.gov.nl.ca/snl/files/NLG20200424.pdf
6 ibid, at Part II; Press Release 22 April 2020 Fisheries and Land Resources, Government of Newfoundland and Labrador, https://www.gov.nl.ca/releases/2020/flr/0422n02/
7 Special Measures Order (General – Alert Level 3) 8 June 2020 paragraphs 1 and 3
8 Special Measures Order (General) 8 June 2020 paragraph 1
9 Special Measures Order (General) 11 May 2020 paragraph 4
10 Special Measures Order (Travel) 15 May 2020 paragraph 3
11 Special Measures Order (Travel) 15 May 2020 paragraphs 4, 5 and 7
12 Special Measures Order (Self Isolation Exemption Order) 16 May 2020
13 Special Measures Order (Kearl Lake) 22 April 2020
14 PHPA s 2(p)
15 Special Measures Order (Travel) 15 May 2020 paragraphs 1-2
16 SC 2005, c.20.
17 Minimizing the Risk of Exposure to COVID-19 inn Canada Order (Mandatory Isolation), Order in Council 2020-0175.
18 Special Measures Order (Personal Care Home and Long Term Care Facilities) 28 April 2020.
19 Special Measures Order (Assisted Living Facilities) 29 April 2020
20 NL Reg 15/01.
21 PHPA s 56.
22 RSNL 1995, Chapter P-31.1