The Quebec government announced on March 23, 2020 that it is ordering the closure of all non-essential commercial activities and services on its territory, but noted that teleworking and e‑commerce shall be allowed at all times for all businesses.
According to this announcement, this measure is effective as of Wednesday March 25, 2020 at 00:01 hours until April 13, 2020 for the entire Quebec territory.
In light of recent experience regarding announcements from the Quebec government in response to the COVID-19 pandemic, this announcement is expected to be formalized by ministerial order of the Minister of Health and Social Services, which should be available shortly.
Update – March 25, 2020:
Order in Council No. 223-2020 made on March 24, 2020 by the Government of Québec confirming the order for the suspension of non-priority services and activities announced March 23 was made available very late in the evening of March 24, 2020. This Order in Council is published as a result of the declaration of a public health emergency due to the COVID-19 pandemic, recognized as a serious and real threat to the health of the population, and provides for the immediate application of certain measures to protect the health of the population.
The order provides that, as of March 25, 2020, all activity carried on in work environments be suspended, except in work environments providing the priority services listed in the schedule to the Order (which is almost identical to the content of the list published earlier by the Quebec government ‑ as amended during the day of March 24, 2020) and as regards the minimum activity needed to ensure the future resumption of the activities of enterprises providing non-priority services, excluding commercial enterprises.
The April 13, 2020 termination date that was previously announced for this order is not indicated in the Order in Council. It is our understanding that it is a result of the fact that the order declaring the public health emergency must be renewed every 10 days.
The wording “all activity carried on in work environments be suspended” reflects the initial analysis indicated in our original bulletin, namely that the order targets establishments or work environments, and not the businesses. It should be noted that, contrary to the text published on the website (that remains online at the time this update was written), the body of the Order only mentions priority services and not priority activities. However, as the list provided in the schedule remains the same, it is our understanding that the scope remains unchanged.
In addition to the above, the Order contains few surprises; the priority services indicated in the schedule of the Order are essentially the same as those set out in the list published earlier by the Quebec government.
Any activity carried on in a work environment where non-priority services are offered (and, by extension, where non-priority activities are carried on), excluding however commercial enterprises, may be carried on to maintain the minimum activity needed to ensure the future resumption of the activities once the Order is lifted. Teleworking in a private residence or its equivalent, as well as e-commerce or any other form of remote trading remain authorized, without any limitations.
It can therefore be confirmed that commercial establishments accessible to the public must remain closed.
It should be noted that, undoubtedly as a result of various interventions to clarify the scope of the list of priority services and activities, the wording of several categories has been adjusted and clarified. More particularly:
• Several types of services and activities of the health sector have been added.
• Among the government services and other priority services, the legal services component was broadened and the professional orders (public protection component) and priority union activities were added.
• Among the priority commercial enterprises, furniture and household appliances (online or telephone sales only) were added.
• Among the media and telecommunications services, communications agencies (advertising, production, feedback) were added.
• Among the banking, financial and other services, the concept of financial market and stock exchange services was clarified and placement agencies were added.
• Among building maintenance and upkeep services, pest management and household appliance maintenance and repair services were added.
• Among priority services in the field of transportation and logistics, the transportation, storage and distribution services now include all goods, not only essential goods, confirming the observations mentioned in our initial bulletin, particularly as regards e-commerce.
It remains possible to request clarifications or the addition of priority services to the Order’s schedule, and the Minister of Health and Social Services is authorized to do so. Our firm can assist you in that regard. Please note that the government website provides a link to a form allowing you to submit an application, and that a toll-free line (1-855-477-0777) has been added for additional information.
Finally, although not specifically mentioned in the Order, we understand that the sanitary measures recommended by public health authorities and published on the Quebec government website dedicated to the COVID-19 pandemic (including social distancing) continue to be advocated by public health authorities.
List of Priority Services and Activities
The list of services and activities deemed priority was published in the afternoon of March 23, 2020 on the Quebec government website dedicated to COVID-19 and can be consulted at this address.
For the moment, the list entitled "List of priority services and activities" only includes a short insert stating the abovementioned closure order and listing a series of services and priority activities that are exempted for the closure order.
It seems probable that the ministerial order will include further precisions on the application of the order. Already, since March 23, 2020 the published list has evolved. Its title was changed from "List of essential services and commercial activities" to "Priority services and activities". Further changes will undoubtedly be made to the final text. The scope of several categories has been adjusted from the initial list.
Already, an addition was made specifying that "all businesses that produce inputs or raw materials necessary for priority services and activities must maintain their activities accordingly, bearing in mind the directives from public health authorities".
Closure Order ‑ Targets the Physical Establishments, Not the Businesses
Based on our current understanding, and pending the precise text of the ministerial order, the closure order targets the establishments where the activities are conducted or the services are provided other than those indicated in the abovementioned list as being priority or essential.
The information available on the website specifies that teleworking and e‑commerce remain allowed at all times, by all businesses. Thus, the order targets the commercial establishments of the businesses, not the businesses themselves.
Businesses can therefore continue to operate provided that they are able to do so in a virtual manner or that they offer a service or conduct a commercial activity that are considered priority or essential and are contemplated in the list. It should be noted that all businesses that continue to operate must ensure that the persons present in their establishments comply with the hygiene standards and, as much as possible, with the recommended practice of social distancing.
Priority Services and Activities
The List of priority services and activities was published online. This list summarily describes the services and activities, organized according to the following categories (as at the drafting of this bulletin). We include an executive summary of the services or activities listed under each category. We ask readers to refer to the actual list for a complete listing.
Several entries seem subject to a more or less large or restrictive interpretation. Particularly, it seems clear that for several businesses, only certain of their services or activities could be targeted. Similarly, these businesses should take measures to suspend their services provided or activities conducted in their establishments that are non-priority or non-essential and, where possible, render these services or conduct these activities by technological means allowing teleworking. Of course, this could be impossible for several businesses, more particularly those offering services directly to the public or conducting activities in the manufacturing sector.
If you are wondering whether the services or activities of your business are contemplated by a certain category, we suggest that you contact a lawyer from the Fasken team or one of the contact persons indicated below. We anticipate that this list will be updated as the situation evolves and interventions are made to clarify the list.
Summary of listed services or activities
Priority health care services
This category targets health care in the health and social services network, emergency pre-hospitalization services, drugstores, specialized resources, homecare services, as well as dentist and optometry emergency consultations and services.
It refers to private seniors' homes and intermediate resources as well as specialized shelter services (conjugal violence, homelessness, drug addiction and so on).
Several specific establishments are listed (811 and 911 call centres, Héma-Québec, the Red Cross, INSPQ, RAMQ).
The production, procurement and distribution of medications, vaccines and pharmaceutical goods and medical equipment, including laboratories and research centres are listed.
Veterinaries and animal shelters are also listed.
Public security services
This category targets police services and fire departments, correctional services, civil protection and coroners, security agencies, as well as related communications and dispatching services.
It also refers to enterprises associated with environmental emergencies.
Priority governments services
This category targets the entire Quebec government departments and bodies.
It refers to emergency childcare services (note that childcare services are suspended, except those services granted to children that have at least one parent providing an essential service).
It also refers to services to citizens in need, social and income security and other services to at-risk clients, such as food banks.
It includes certain services intended for the public, such as food inspection and safety, garbage collections and residual materials management, government air services, online higher education and staff that the municipalities deem essential.
Finally, it refers to courts of law and administrative tribunals in cases that they deem urgent and legal services.
Observation: This category is described as listed government services. At the time this bulletin was written, we must wonder whether certain private or para-public listed items are also contemplated, such as food banks, garbage collection and management businesses or legal services (for example, private practice lawyers who accept legal aid mandates).
Maintenance and operation of strategic infrastructure
This category targets maintenance and operation of strategic infrastructures, including:
Observation: This category may contemplate services offered by private businesses or certain activities of private businesses.
Priority manufacturing activities
This category targets priority manufacturing activities, including:
Observation: This list is not restrictive and it is conceivable that other manufacturing sectors will be deemed priority. It seems appropriate to follow the recommendation made for industrial complexes to reduce their activities to a minimum. We understand from communications made in certain targeted industries that the minimum activities for the industrial and mining complexes target activities required for the care and maintenance of the infrastructures and that the production should be limited to what is required for the priority goods or services.
We note that the entire pulp and paper sector has been added, probably because the producers cannot know whether their products are being used or not for priority goods and services (food packaging, newspapers, etc.).
This category targets priority stores, including:
Observation: We have reproduced this list almost in its entirety given its specificity. Again, the list has not been drafted restrictively and it is conceivable that other businesses be deemed essential.
Media and telecommunications
This category targets the following media and telecommunications services: telecommunications (network and equipment), cable operators, printers (solely for printing newspapers), national media and local media.
Observation: This is one of the only categories drafted in restrictive terms. The drafting does not appear to distinguish between information media and entertainment media. Given the context, it could be deemed prudent for entertainment media to limit their activities.
Banking and financial services
This category targets banking and financial services, including financial services (financial institutions, ATMs and other payment methods).
It also refers to insurance telephone services, payroll and accounting services and services related to financial markets.
Observation: This category seems to target certain essential commercial activities of businesses that would not otherwise offer essential services, such as services for businesses relating to payroll, accounting or financial markets.
This category targets, in the construction sector, construction firms for emergency repairs or for security purposes, certain trades for emergency services and rental equipment.
Observation: It is clear that construction sites must be suspended, except in cases of emergency or where a situation threatens security. This seems to target both job sites and construction services for individuals.
Building maintenance services
This category targets building maintenance services, including janitorial work and building-maintenance firms (elevators, ventilation, alarms).
Observation: According to this description, it seems possible for businesses to maintain activities relating to the personnel required for the maintenance of their buildings or establishments. It is logical to believe that this would only be allowed where an essential service or activity is carried out in the establishment or to the extent necessary to preserve the building.
Priority transportation and logistics services
This category targets the following priority transportation and logistics services:
Observation: We have reproduced this list almost in its entirety given its specificity.
The transportation, warehousing and distribution of non-priority merchandise is not indicated. That said, the announcement mentions that e‑commerce remains available and the list includes message handling and parcel delivery. In addition, it is not certain that the logistics businesses ensuring the transportation, warehousing and distribution have the necessary tools to determine whether the goods are priority goods or not.
It could be assumed therefore that the transportation, warehousing and distribution, as well as the delivery of parcels, resulting from e‑commerce that require the operation of commercial establishments will be authorized during the period contemplated by the interdiction. This will certainly create practical difficulties for businesses that are conducting activities that may be limited to their available inventories or that may need to delay their deliveries until after lifting of the order. Alternately, certain online retailers that obtain their inventory in another jurisdiction not covered by such an order may be able to continue their operations.
This situation may seem to create an asymmetrical treatment among the businesses. However, this situation probably already exists de facto, as a result of the supply chain and the global impact that the present situation already has on them.
It should be noted that businesses conducting activities related to e‑commerce (warehousing, distribution, shipping) that originate from their retail outlets may need to deal with the restrictions resulting from the closure of shopping centres ordered on March 22, 2020.
As can be seen from the above observations, the implementation of this list will necessarily require an evaluation of each business's specific circumstances. It can be expected that this list will be amended and clarified over time. So far, the Quebec government has demonstrated promptness and flexibility in adjusting to the evolving COVID-19 situation.
Its approach is slightly different from that of other North-American jurisdictions, where orders have aimed to reduce members of staff in non-essential businesses, such as the State of New York which ordered a 75% staff reduction at business establishments, excluding essential services. This approach seems to let businesses determine which members of their staff will be retained. Meanwhile, the Quebec government has decided to restrict staff based on the types of commercial activities they carry out.
For now, there is no regional differentiation. The order applies across Québec. Other Canadian jurisdictions and provinces have also adopted similar measures today and over the past few days.
Addition to the List
Businesses that are not listed as essential can apply to be designated as such. The Quebec government's website currently indicates that a hotline will be established for this purpose in the near future.
We have already noticed updates to the list on March 23, 2020.
Since this type of intervention may result in the amendment of a decree or ministerial order, and therefore of an orientation of the minister, businesses should bear in mind that a legislative framework applies to lobbying activities and the possible obligation to register with the Quebec Lobbyist Registry. Note that if the process established by the government becomes a standardized administrative process, simply filing an application as part of this process would likely not be considered a lobbying activity within the meaning of the Act, but other influence communications beyond the simple filing of applications might be. This information should be confirmed once the process is known. Generally speaking, simple communication about the interpretation or application of this measure would not normally be considered a lobbying activity.
Note that the list of essential services and commercial activities contains several references to essential activities. These activities may be conducted by a business whose primary services are not necessarily essential services.
For instance, the list mentions:
- maintenance and operation of strategic infrastructure, including computer resources (security, maintenance, urgent needs related to the situation) and data centres
- building maintenance services, including janitorial work
- payroll and accounting services
It therefore seems that businesses may maintain essential staff at their establishments for these specific functions. This possibility remains to be confirmed once the ministerial order becomes available. However, this would be consistent with the statement that teleworking and e‑commerce are allowed at all times, by all businesses.
Based on our understanding, all such essential commercial activities should not include the physical presence of the public at a commercial establishment.
We advise businesses to take advantage of any such exemptions prudently and sparingly to protect their employees and the public. As specified, recommended social distancing measures must be complied with, whenever possible.
For the time being, the announcement does not mention any documentation that businesses providing essential services and commercial activities might need to continue their operations in their establishment.
However, it may be prudent to provide employees who need to travel or access establishments that may be closed due to measures relating to COVID-19 with a document or letter attesting to the essential nature of their services.
This recommendation particularly applies to people who maintain or repair computer equipment or work in building maintenance and who must go from one establishment to another and require access to them in the context of their work.
If precautionary measures were to increase, this may also be suggested for other staff, such as employees who need to have access to administrative offices for payroll or accounting purposes.
As there is currently no required format, this document could simply be a letter from the employer establishing that the business provides essential services or that the employee is carrying out essential commercial activities for the business, based on the available list.
Legislative and Regulatory Context
This decision follows the declaration of public health emergency made on March 13, 2020 by Decree 177-2020, under section 118 of the Public Health Act (CQLR c S-2.2). This declaration is valid for renewable 10-day periods. It was renewed on March 20, 2020 by Decree 222-2020.
The declaration of public health emergency grants the Minister of Health and Social Services certain powers under section 123 of the Public Health Act. Minister Danielle McCann has already issued several ministerial orders, including the suspension of activities in various public areas, the restriction of the activities of certain establishments such as restaurants, the cancellation of electoral polls and the suspension of teaching and childcare activities (except for certain users with designated positions related to essential services).
Emergency childcare services
The government's website was amended to clarify that workers in essential services and priority activities are not necessarily entitled to the emergency childcare services targeted by some of the abovementioned ministerial orders.
In accordance with sections 138, 139, 141 and 142 of the Public Health Act, any person who impedes or hinders the Minister of Health and Social Services or a public health director or refuses to obey their order is guilty of an offence and is liable to a fine of $1,000 to $6,000, which is doubled in the case of a second or subsequent offence.
Any person who assists or who incites, advises, encourages, allows, authorizes or orders another person to commit an offence under this Act is guilty of an offence and is liable to the same penalty.
Presumably, this may mean that public health authorities will prioritize closing offending establishments and will use the powers conferred upon them to enforce closure orders.
Businesses whose services or commercial activities are not explicitly targeted by the published list and its updates may communicate with the Quebec government to ask that the list be clarified and work with public health authorities in managing this situation and obtaining reliable information as to the state of the information.
Fasken's professionals are hard at work to support you as the situation evolves. Our firm has taken all necessary measures to ensure its staff is fully operational remotely.
We are continuing to compile various resources in our Coronavirus (COVID-19) Knowledge Centre and have developed tools and practical response kits for businesses, which can be obtained by communicating with one of your Fasken contacts. We are continuing to monitor all developments relating to this situation, and one of our experts can advise you on the application of the published measures and best practices to adopt.
We encourage you to communicate with one of your preferred contacts or with one of the following contacts: Magali Cournoyer-Proulx, Martin Legault, Eric Simard, Emilie Bundock, Nicolas Leblancand Nathalie-Anne Béliveau.