COVID-19: Order in Council 223-2020 on essential services and the legal risks of noncompliance

A. Context

On March 24 2020, the Government of Quebec adopted Order in Council number 223-2020, as one of several measures to limit the spread of COVID-19. The order in counsel requires the suspension of all workplace activities that cannot be directly or indirectly associated with the provision of essential services, for an indefinite period effective March 25 at 00:01 A.M. 

Companies, businesses or self-employed persons who contravene these measures can be subject to administrative and criminal penalties as well as other potential consequences, including civil liability.¹ 

B. Legislative provisions forming the basis of the Government’s decision 

The Public Health Act² (the “Act”) grants broad powers to the government in the event of a health emergency. When a state of health emergency is declared, the government may, without delay and without further formality, order the closure of any place of assembly or take any other measures necessary to protect the health of the population.³ 

C. Services considered a priority and maintained by Order in Council 223-2020

The businesses authorized to continue their activities are those whose services are considered a priority by the government. A list of essential sectors of activity has been provided by the Government of Quebec as an appendix to Order in Council 223-2020 and is available here. 

A business whose services are not included in the above list may apply to the government for designation as an essential service. The government invites businesses interested in making this request to complete the online form. These businesses can also obtain information by telephone at 1 855 477-0777. 

In order to qualify, a company, business or self-employed person must provide a service or product deemed to be a priority, either directly or indirectly (i.e. as a subcontractor or co-contractor providing products necessary for the priority sectors). 

It should be noted that the minimum operations required to ensure the eventual resumption of activities of businesses providing non-essential services—excluding trade—are not covered by the government guidelines.⁴

These are, however, “minimal” activities. It would be reasonable to assume that a business that has to carry out certain activities related to the safety or protection of property—such as the maintenance of equipment or the heating system—or aimed at ensuring the resumption of activities once the order is lifted, will not be subject to penalties. This is, of course, subject to interpretation and the government is relying on business owners to apply their best judgment in determining what constitutes minimum operations. 

Similarly, the order does not have the effect of preventing telework in a private residence, nor does it prevent online business or any form of e-commerce. Telework, where possible, is still the preferred measure in the current context. 

Furthermore, we invite businesses that provide essential services, as well as those wishing to obtain a designation to that effect, to provide their employees with a letter confirming the essential nature of the business of their activities. By doing so, the employee will be able to provide adequate written justification should the authorities question him or her about his or her travel or activities. We also recommend that businesses allowed to continue operations because they provide essential inputs to priority sectors obtain letters from their customers confirming that their subcontracted production is necessary for the continuity of their customers’ operations. 

Finally, we would like to point out that the list of essential sectors may be modified at any time by the Minister of Health and Social Services as this situation evolves. 

D. Administrative and penal penalties

The Act sets out certain monetary penalties for violations. For example, a person who refuses to comply with an order from the Minister of Health and Social Services or Canada’s Chief Public Health Officer, by ignoring government instructions to suspend activities at his or her establishment, could be fined between $1,000 and $6,000.⁵ 

The same penalty applies to “(i) any person who provides false or misleading information to the Minister, the National Director of Public Safety or any other person authorized to act on their behalf”⁶ or “(ii) any person who induces or assists another person to commit an offence” under this Act.⁷. 

In the case of repeat offences, the minimum and maximum limits of the applicable penalties are doubled.⁸ 

Given their extensive jurisdiction in penal matters⁹, the Court of Québec and the municipal courts of Montréal, Laval, and Québec City have jurisdiction to impose these penalties. 

While the government has thus far relied on the goodwill of Quebecers to comply with the guidelines issued, one cannot rule out the possibility that law enforcement officers could be called upon to intervene. The latter could compel a business considered non-essential to suspend its operations, in accordance with government instructions. 

E. Civil liability

In terms of civil liability, what happens if a business deemed non-essential refuses to close its doors, in violation of the Order in Council? Could it expose itself to civil liability in the event of COVID-19 contamination of customers, employees or third parties? 

Section 1457 of the Civil Code of Quebec (“C.C.Q.”) provides that a person who fails to observe the rules of conduct that are appropriate in the circumstances is liable for the harm caused to another as a result of that failure. In order for a business to be held liable, it will be necessary to show that the business has committed a breach and that this breach has caused harm. 

While legal duties, such as those arising from a government order, are indicative of the proper standard of conduct and may influence the assessment of the duty of care that is required in a given context, a breach of that duty does not automatically lead to a finding of fault.¹⁰ 

That being said, in the present circumstances, it would be prudent in the context of legal and reputational risk management to presume, for companies deemed non-essential, that the violation of the government order may amount to a fault within the meaning of Section 1457 CCQ. 

However, in order to establish civil liability, it is still necessary for the fault to have resulted in harm and for a causal link between the two to be established. This is a highly factual analysis. For instance, it could be difficult for a person infected with COVID-19 to demonstrate that the disease was contracted as a result of a business’s violation of the order. 

On the other hand, case law provides that it is possible to presume a causal link when the harm suffered is precisely that which the law seeks to avoid and occurs contemporaneously with the violation of the law.¹¹ This rebuttable presumption was developed in the context of a traffic violation. The courts will have to contextualize its application in the present situation, in particular because it could be difficult to show that the harm in this case, namely a COVID-19 contamination, occurred “immediately” after or truly contemporaneous with the contravention of the government measures. Nevertheless, we believe it is prudent to anticipate that the courts will apply a similar presumption to facilitate proof of the causal link between fault and injury in this situation. As such, civil liability claims could be successfully brought against businesses deemed non-essential that have failed to comply with the government order where customers, employees or third parties have been contaminated by COVID-19.