COVID-19 Developments and Legal Updates

John Samms and Amanda Whitehead

This article sets out to summarize the Newfoundland and Labrador Government’s announcements in respect of its latest response to the COVID-19 pandemic as of approximately 3:00 p.m. on March 19, 2020. In our review, we identified that businesses and workplaces constitute a grey area in the current regime insofar as the restriction on “gatherings of more than 50 people” is concerned. The NL Government authorities have since confirmed that businesses not explicitly ordered to close that employ greater than 50 people at any given time are not “gatherings” for the purposes of the Special Measures Order. As stated by Dr. Fitzgerald, the Newfoundland and Labrador Chief Medical Officer of Health, in her latest news conference:

Businesses that employ more than 50 people, that do not fall into one of [the listed] groups, are not required to close. These employers are advised to put measures in place that respect the principles of social distancing and to allow work from home as much as possible

Declaration of Public Emergency

On March 18, 2020, the Newfoundland and Labrador Minister of Health, John Haggie, signed a Declaration of a Public Emergency (“Declaration”) under section 27 of the Public Health Protection and Promotion Act (“the Act”), on the advice of the Newfoundland and Labrador Chief Medical Officer of Health.

The Declaration expires no more than 14 days after it is made, unless the Minister, on the advice of the Chief Medical Officer of Health, extends the Declaration for an additional period of 14 days. There is no limit on the number of extensions that may be declared, provided that at the time of each extension the ‘public health emergency continues to exist’ and ‘the extension is required to protect the health of the population’.

The Chief Medical Officer of Health, Dr. Janice Fitzgerald, then issued a Special Measures Order under section 28 of the Act – her signature is dated March 19, 2020.

The powers granted to the Chief Medical Officer of Health once a declaration has been made are numerous. Of particular relevance are the following powers available to the Chief Medical Officer of Health:

• (h) make orders restricting travel to or from the province or an area within the province;
• (i) order the closure of any educational setting or place of assembly; [Note that place of assembly is not defined in the Act]
• (k) take any other measure the Chief Medical Officer of Health reasonably believes is necessary for the protection of the health of the population during the public health emergency.

The fines applicable to businesses who contravene the orders are $5,000 – $50,000 for a first offence, and $5,000 – $100,000 for a subsequent offence. Individuals may be fined $500 – $2,500 for a first offence, and $500 – $5,000 for a subsequent offence. Individuals may also be subject to imprisonment for not more than six months. Each day of contravention is a separate offence. Additionally, directors and officers of a corporation may be personally liable for offences committed by a corporation.

Special Measures Order

The Special Measures Order requires the following businesses to be closed immediately:

• gyms and fitness facilities, including yoga studios, tennis and squash facilities;
• dance studios;
• cinemas;
• performance spaces;
• arenas; and
• businesses that hold a license under the Liquor Control Act whose primary purpose is the consumption of beer, wine, or spirits and that do not otherwise qualify as an exception under this order.

The Special Measures Order also mandates that:

• Bingo halls close;
• Restaurants close for in-person dining unless that restaurant can operate at fifty percent of its regular capacity and can maintain appropriate social distancing in accordance with guidelines from the Chief Medical Officer of Health. Further, buffets are prohibited.
• Gatherings of more than 50 people are prohibited.
• All individuals returning from outside Canada must self-isolate for 14 days, including those individuals returning from the United States of America.

Prohibitions on gatherings of more than 50 people – does this include workplaces?

The measures described above did not explicitly prohibit the operation of businesses/workplaces, though gatherings of 50 people within the workplace are likely prohibited. Taking the orders and public statements from the provincial authorities as a whole, groups greater than 50 likely ought not to be working directly together and social distancing guidelines ought to be adhered to.

On the afternoon of March 19, 2020, Dr. Janice Fitzgerald confirmed that businesses not explicitly ordered to close that employ greater than 50 people at any given time are not “gatherings” for the purposes of the Special Measures Order.

If you are uncertain on where your business stands in relation to this order, or if you have any questions, please contact the authors of this piece as we would be happy to assist.

This article is provided for general information only. 

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