A reminder of the high cost of continuing non-essential activities

Amélie Côté [1] and Magdalena Chovena [2]
ROBIC, LLP
Lawyers, Patent and Trademark Agents

On April 5th, Premier Legault extended the suspension of all workplace activities, except for workplaces which provide “priority services”, more commonly referred to as “essential services”, until May 4^th, 2020. This province-wide suspension, which was originally declared by the adoption of Decree 223-2020 on March 24, 2020 (the “Decree”) is one of the many public health emergency measures taken by the government to curb the spread of the Coronavirus 2019 (hereinafter “COVID-19“). Although this extension may prove to be difficult for many corporations which provide non-essential services, the cost of non-compliance may be significant.

The purpose of this article is to briefly summarize Decree 223-2020 and to inform businesses of their obligations in relation thereto as well as all the consequences they may face in the event of non-compliance. 

A BRIEF REVIEW OF DECREE 223-2020

Goal

By adopting the Decree on March 24, 2020, the government is attempting to limit human contact and non-essential travel by employees, clients and third parties in order to curb the spread of COVID-19 and thus protect the health of the Quebec population. 

What is a “priority” activity?

The Quebec government has attached to the Decree, as well as listed on their website, the services and businesses designated as a priority. 

Among the businesses that offer priority services are the following:

• Institutions in the health and social services network;
• Pharmacies;
• Grocery stores and other food retailers;
• Société québécoise du cannabis; and
• Local and national media.

It should be noted that the list is updated on a regular basis and should be monitored closely.

Corporate Obligations

Although the companies designated as conducting priority activities have the right to continue their activities, they must ensure that ensure compliance, as much as possible, with the principles of physical distancing.

If a business conducts an activity which is not deemed to be a priority, but considers that it should be, it can apply to verify the designation as an essential business by completing a form available online.

The website of the government of the province of Quebec also specifies that businesses that are not designated as a priority, excluding stores, can maintain minimal operations to ensure the resumption of their activities, while taking into account public health guidelines.[3]

Finally, it is important to note that telework and e-commerce remain permitted at all times for all businesses, whether or not they are designated as priority businesses. In fact, the government specifies in the Decree that transportation, warehousing and distribution of goods are priority services which are maintained, regardless of whether the goods are linked to priority services or not. Thus, any activity related to e-commerce, including transportation, warehousing and distribution, remains possible under the Decree. 

Potential Consequences in the Event of Non-Compliance

The Decree itself does not specify specific sanctions for violations of the prohibitions. However, companies, businesses or self-employed workers who do not comply with the measures set out in the Decree may face, among others, the following consequences:

• Anyone who refuses to comply with the suspension of the activities of his or her business that does not offer priority services commits an offence punishable by a fine of between $1,000 and $6,000 under the Public Health Act. In addition, anyone who assists, encourages, counsels or, by any means, induces another person to commit this offence is liable to the fines provided for in the Act. In the event of a repeat offence, these fines are doubled. ^[4] 

• Other fines ranging from $1,500 to $60,000 may also be applied under the Occupational Health and Safety Act if a company offering non-priority services does not suspend its activities and this compromises the health, safety and physical integrity of its employees. [5]

• A company violating the Decree must also consider the potential consequences under the Code of Criminal Procedure. Indeed, a peace officer has the power to arrest a person who commits an offence under the Public Health Act, if an arrest is the only reasonable means available to him or her to stop the commission of the offence. [6]

• Generally speaking, a company violating the Decree could also, in theory, incur its civil liability. In this case, the applicant, for example a customer or a third party, would have to establish not only the company’s fault (the violation of the Decree) and the damage resulting from it, but also the causal link between the two. Even if the latter appears difficult to prove, it would be prudent not to exclude civil liability as a potential consequence of the violation of the Decree.

In any case, it will be necessary to remain alert to new developments in this unprecedented situation, since the government could decide to increase the consequences of offenders at any time or even extend the suspension until a later date.

For more information or if you have any questions about your company’s services and activities, do not hesitate to contact us!

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