On November 20, 2020, the Government of Ontario announced that it would be moving certain public health unit regions to new levels in its Keeping Ontario Safe and Open Framework.

On November 22, 2020, O. Reg. 657/20 made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “ROA”) amended O. Reg. 363/20 (Stages of Reopening). As a result, effective Monday, November 23, 2020 at 12:01 a.m., City of Toronto Health Unit and Peel Regional Health Unit will enter into lockdown as Stage 1 Areas (the “Stage 1 Areas”). At the same time, the following public health unit regions will be moved from their current level in the framework to the following:

• Red-Control (Stage 2 Areas)
  • Durham Region Health Department; and
  • Region of Waterloo Public Health and Emergency Services.

• Orange-Restrict (Stage 3 Areas)
  • Huron Perth Public Health;
  • Simcoe Muskoka District Health Unit;
  • Southwestern Public Health; and
  • Windsor-Essex County Health Unit.

• Yellow-Protect (Stage 3 Areas)
  • Chatham-Kent Public Health;
  • Eastern Ontario Health Unit;
  • Grey Bruce Health Unit;
  • Kingston, Frontenac and Lennox & Addington Public Health;
  • Peterborough Public Health; and
  • Thunder Bay District Health Unit.

Stage 1 Areas

On November 22, 2020, the Government of Ontario issued O. Reg. 654/20 (the “Lockdown Regulation”) under the ROA which amends O. Reg. 82/20 (Rules for Areas in Stage 1). 

Amongst other items, businesses, or a part of a business, that are not listed in Schedule 2 or 3 of the Lockdown Regulation must ensure that the business, or part of the business, is closed. Further, persons responsible for a business, or part of a business, that is listed in Schedule 2 or 3 subject to conditions, must ensure that the business, or part of the business, either meets those conditions or is closed.

Schedule 2 of the Lockdown Regulation includes 68 categories of “businesses that may open”. Schedule 3 – which sets out “places that must close or that are subject to conditions” includes public libraries, post-secondary institutions, schools and private schools, recreational amenities, and museums.

The Lockdown Regulation impacts on the following areas:

1. City of Toronto Health Unit.
2. Peel Regional Health Unit.

• General Compliance for Businesses That May Open

Stage 1 Area businesses or organizations that are permitted to open must ensure that they operate in accordance with all applicable laws, including the Occupational Health and Safety Act and its corresponding regulations. This is in addition to the requirement that they operate in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing cleaning or disinfecting and advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health on screening individuals.

Moreover, such businesses must ensure that subject to certain exceptions, any person in the indoor area of the premises, or in a vehicle that is operating as part of the business or organization, wear a mask or face covering in a manner that covers their mouth, nose and chin during any period when they are in the indoor area unless the person is in the indoor area.

Additionally, the Lockdown Regulation sets out that a person shall wear appropriate personal protective equipment that provides protection of their eyes, nose and mouth if, in the course of providing services, the person: (a) is required to come within two metres of another person who is not wearing a mask or face covering when that person is in an indoor area; and (b) is not separated by plexiglass or some other impermeable barrier from a person who is not wearing a mask or face covering in an indoor area.

• Capacity Limits for Business or Facilities Open to the Public

In terms of capacity, a business or facility that is permitted to remain open to the public must limit the number of persons within it so that: (a) the members of the public can physically distance themselves from every other person in the business or facility; and (b) the number of persons occupying any room that is open to the public in the business does not exceed 50 per cent of the capacity of the particular room.

• Physical Distancing and Masks or Face Coverings in Lines

Businesses or places that are open must not permit patrons to line up inside, or to line up or congregate outside the business or place, unless they are: (a) physical distancing; and (b) subject to their entitlement to any of the exceptions set out in the Lockdown Regulation, wearing a mask or face covering.

• Safety Plans are Required for Businesses That May Open

Businesses that are open must prepare and make available a safety plan or ensure that one is prepared and made available, on or before November 30, 2020. Pursuant to the Lockdown Regulation, the safety plan must describe the measures and procedures which have been implemented or will be implemented in the business to reduce the transmission risk of COVID-19. It must also describe how the requirements of the Lockdown Regulation will be implemented in the location including by screening, physical distancing, masks or face coverings, cleaning and disinfecting or surfaces and objects, and the wearing of personal protective equipment. It shall be in writing and businesses shall ensure that a copy of the safety plan is posted in a conspicuous place where workers and those attending the business will likely be able to view it. Further guidance on safety plans can be found here.

• Cleaning Requirements

Businesses or places that are permitted to stay open must ensure that any washrooms, locker rooms, change rooms, showers or similar amenities made available to the public are cleaned and disinfected as frequently as is necessary to maintain a sanitary condition. In addition, they must ensure that any equipment that is rented to, provided to or provided for the use of members of the public is cleaned and disinfected as frequently as is necessary to maintain a sanitary condition. The Lockdown Regulation is express in that these cleaning requirements also apply to computers, electronics and other machines or devices that members of the public are permitted to operate.

• Other Requirements

The Lockdown Regulation also sets out specific requirements for those who provide short-term rental accommodations as well as when meeting or event spaces may be rented out. Other requirements are set for those businesses or places that sell or serve liquor under a licence or a special occasion permit. Further, in-person driving instruction is not permitted pursuant to the Lockdown Regulation.

Stage 2 Areas

The Government of Ontario also issued O. Reg. 656/20 (the “Stage 2 Amendment Regulation”) under the ROA which amends O. Reg. 263/20 (Rules for Areas in Stage 2).

The Stage 2 Amendment Regulation impacts on the following areas in the Red Zone of Stage 2:

Red Zone of Stage 2

1. City of Hamilton Health Unit.
2. Durham Regional Health Unit.
3. Halton Regional Health Unit.
4. Waterloo Health Unit.
5. York Regional Health Unit.

Stage 3 Areas

In addition to the foregoing, the Government of Ontario also issued O. Reg. 655/20 (the “Stage 3 Amendment Regulation”) under the ROA which amends O. Reg. 364/20 (Rules for Areas in Stage 3).

The Stage 3 Amendment Regulation impacts on the following areas in the Green Zone, Yellow Zone, or Orange Zone of Stage 3:

Green Zone of Stage 3

1. The District of Algoma Health Unit.
2. Haliburton, Kawartha, Pine Ridge District Health Unit.
3. Hastings and Prince Edward Counties Health Unit.
4. Lambton Health Unit.
5. Leeds, Grenville and Lanark District Health Unit.
6. North Bay Parry Sound District Health Unit.
7. Northwestern Health Unit.
8. Porcupine Health Unit.
9. Renfrew County and District Health Unit.
10. Timiskaming Health Unit.

Yellow Zone of Stage 3

1. Chatham-Kent Health Unit.
2. The Eastern Ontario Health Unit.
3. Grey Bruce Health Unit.
4. Haldimand-Norfolk Health Unit.
5. Kingston, Frontenac and Lennox and Addington Health Unit.
6. Middlesex-London Health Unit.
7. Peterborough County — City Health Unit.
8. Sudbury and District Health Unit.
9. Thunder Bay District Health Unit.

Orange Zone of Stage 3

1. Brant County Health Unit.
2. City of Ottawa Health Unit.
3. Huron Perth Health Unit.
4. Niagara Regional Area Health Unit.
5. Oxford Elgin St. Thomas Health Unit.
6. Simcoe Muskoka District Health Unit.
7. Wellington-Dufferin-Guelph Health Unit.
8. Windsor-Essex County Health Unit.

Consequences of Non-Compliance

Between the Emergency Management Civil Protection Act, R.S.O. 1990, c. E.9 and the ROA, there are a variety of enforcement mechanisms and for failing to comply. Enforcement mechanisms include: restraining orders without notice; and temporary closure orders by police officers, special constables or First Nationals Constables where they have reasonable grounds to believe that an organized public event or other gathering is occurring at the premises and the number of people in attendance exceeds the number permitted under a continued section 7.0.2 order.

Penalties for violating provincial orders can range from $750 to $100,000, including up to one year in jail for individuals, up to $500,000 and a jail term of not more than one year for directors and officers, and up to $10,000,000 for a corporation. The fine imposed may also be increased by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence. Each day that an offence occurs or continues is considered a separate offence.

Moreover, there may be circumstances where businesses may potentially be subject to potential liabilities under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, and/or subjected to fines specific to a municipality or city. For example, specific to the Peel Regional Health Unit, on November 14, 2020, the Chief Medical Officer of Health for Peel Region, issued a new public health order under Section 22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. This public health order created the fine system for businesses that flout public health protocols, due to workplace outbreaks driving case counts higher. Businesses within Peel Regional Health Unit can be fined up to $5,000 per day.

This update is part of our continuing efforts to keep you informed about COVID-19. If you or your business needs assistance, please reach out to any member of our Retail and Consumer Markets Team or leaders of our Hub for Business Leaders.