COVID-19: Can They Do That? Part VIII: Using Emergency Powers To Close Businesses

This update is part of a continuing series. We are providing a brief overview of the current state of federal and provincial emergency legislation, how our governments are using (and could eventually use) their statutory powers to confront COVID-19, and what the effects of their efforts on Canadian businesses might be. We are also canvassing some of the constitutional constraints on government action.

For our past updates, and for up-to-date information on COVID-19 and McCarthy Tétrault's perspective on the legal issues it presents, please visit our dedicated hub, here.

Ontario and Québec

On March 23, 2020, the governments of Ontario and Québec exercised their respective statutory emergency powers to order the closure of all "non-essential businesses" in response to the COVID-19 pandemic.

Ontario exercised its powers under the Emergency Management and Civil Protection Act (the "EMCPA") to order the mandatory closure of all "non-essential" workplaces, effective Tuesday, March 24, 2020 at 11:59 p.m. See our previous post discussing the powers available to the Ontario government under the EMCPA, here.

As Ontario has declared a state of emergency under section 7.0.1 of the EMCPA, s. 7.0.2(4)5 of the Act empowers the province to "[c]los[e] any place, whether public or private, including any business, office, school, hospital or other establishment or institution", if Cabinet believes it "necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or damage to property". Ontario released a list of "essential workplaces" that are permitted to stay open. The closures will remain in effect for 14 days, with the possibility of extension.

Québec acted pursuant to the Public Health Act (the "QPHA"), and further to its state of public health emergency, to order all non-essential businesses to close as of Wednesday, March 25, 2020 at 12:01 a.m. until Monday, April 13, 2020. See our previous post discussing the powers available to the Québec government under the QPHA, here.

Section 123 of the QPHA allows the government or the Minister of Health and Social Services to take certain measures during a state of public health emergency to protect the health of the population, including, pursuant to s. 123(8), to "order any measure necessary to protect the health of the population". Like Ontario, Québec also released a list of businesses considered "priority services", which are permitted to remain open.

Closures in other...