On March 30, 2020, the Manitoba provincial government announced a series of enhanced special measures under The Public Health Act, C.C.S.M. c. P210 (the “Act”) in response to COVID-19, including the closure of all non-critical businesses as of April 1, 2020 for a period of 14 days.
This article summarizes the new measures, their effect and the consequences to individuals and businesses for violation of the public health orders (“orders”). Readers may access the full text of the orders here.
Section 67(1) of the Act identifies a number of “special measures” that the province’s Chief Public Health Officer may take, with ministerial approval, in circumstances where they reasonably believe: “(a) a serious and immediate threat to public health exists because of an epidemic or threatened epidemic of a communicable disease; and (b) the threat to public health cannot be prevent, reduced or eliminated without taking special measures.” The powers afforded by virtue of section 67(1) are far-reaching and include the authority to order the closure of public places and premises and restrict public gatherings.
The measures announced on March 30, 2020 include six (6) public health orders which took effect at 12:01 a.m. on April 1, 2020. The orders applicable to a “business” include a trade, industry, service, profession or occupation, whether operated on a commercial or not-for-profit basis.
Orders announced on March 30, 2020
All persons are now prohibited from assembling in a public gathering of more than 10 persons at any indoor or outdoor premises.
This includes places of worship, social gatherings and family events such as weddings and funerals. This order does not apply to health-care facilities or facilities for social services.
All restaurants and other facilities where food is served must not serve food to customers for consumption at their premises.
This does not prevent food from being sold for delivery or take-out if the person responsible for the restaurant or commercial facility implements measures to ensure that persons attending the premises are reasonably able to maintain a separation of at least two meters from other persons who are attending the premises.
The operator of a business that is not listed in the applicable schedule must ensure that the place of business is closed between 12:01 am on April 1, 2020 and 12:01 am on April 14, 2020.
A full copy of the schedule is available at pages 6 – 15 here.
Some notable exceptions listed in the schedule, and therefore can remain open, include grocery stores, gas stations, hotels, businesses providing maintenance or construction services and businesses engaged in agriculture and food production services.
Temporary access to a closed business is still permitted under this order to allow for maintenance and security as well as temporary attendance to deal with critical matters related to the closure or to access goods and materials that are necessary to work remotely.
A business that is not listed in the schedule may continue to provide services online, by telephone or other remote means.
This order does not prevent businesses from operating in order to provide goods by way of delivery or pick-up that have been ordered online, by telephone, or other remote means. However, if the business allows members of the public to attend the place of business to pick up the goods, the operator of the business must implement measures to ensure persons attending the place of business are reasonably able to maintain a separation of at least two meters from other persons attending the business.
Nothing in this order prevents Government operations or the operations of publicly funded organizations, regardless of whether they are listed in the schedule.
Businesses listed in the schedule may remain open, but must implement measures to ensure persons attending the place of business are reasonably able to maintain a separation of at least two meters from other persons attending the business.
Physicians, registered nurses, licensed practical nurses and midwives, registered to practice in Manitoba by their profession’s respective college, are not affected by the order requiring non-essential businesses to close, any may continue to practice without restriction.
In order to assist with the additional strain on the health care system due to the COVID-19 pandemic, an order was issued under The Regulated Health Professions Act (the “Act”) on April 1, 2020 to enable the registrar of the College of Registered Nurses of Manitoba to waive or modify registration requirements for former registered nurses, allowing them to apply for temporary registration during the pandemic on an expedited basis.
Other health professionals who are authorized to practice their profession are limited to providing services to or on behalf of: (a) the Government of Canada, the government of Manitoba or a municipality; (b) any person or publicly-funded agency, organization or authority that delivers or supports government operations and services, including health care operations and services; and (c) any business that is listed in the schedule. Businesses identified under the category of “Health care, seniors care and social services” are listed in the schedule at items 49 – 58.
Nothing in this order is intended to restrict an authorized health professional’s ability to provide urgent or emergent care, and the standards of a profession may in fact require it.
It is essential that any health professional who is unsure if they are still permitted to practice under the special measures seek legal advice.
Municipal public transportation services, taxis, and other vehicles for hire may continue to operate “if their operators have implemented measures to ensure that all passengers are able to maintain a reasonable separation from other persons in the vehicle.”
This order will no doubt limit the number of passengers an operator may have in their vehicle. No guidance is offered as to what constitutes “reasonable separation” between passengers in a vehicle. Common sense dictates that it is something less than the two-meter separation required when members of the public are attending businesses that remain open under the special measures.
Consequences for Violation of the Orders
Severe consequences may result to an individual or corporation that does not comply with any one of the six new orders announced by the provincial government. Section 90(1)(b) makes it an offence not to comply with an order made under the Act.
In the case of an individual, non-compliance with an order may result in a fine of up to $50,000 or imprisonment for up to six (6) months, or both.
In the case of a corporation, non-compliance may result in a fine of up to $500,000. The director or officer who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and liable to the same penalties facing an individual.
It should be noted that where an offence continues for more than one day, the individual or corporation is guilty of a separate offence for each day the offence continues. The time limit for prosecution of an offence under the Act – including non-compliance with an order under section 67(1) – is two (2) years from the date of the alleged offence.
On April 1, 2020, Manitoba’s Chief Public Health Officer announced that public health inspectors would be attending businesses in order to determine compliance with the orders. The Act confers upon inspectors broad inspection powers, including the ability to:
- enter and inspect any place or premises, other than a dwelling, at any reasonable time in order to determine compliance with the Act;
- enter and inspect any place or premises, including a dwelling, at any time and without a warrant, where they reasonably believe there is a serious and immediate threat to public health due to a communicable disease;
- detain a motor vehicle, trailer, aircraft or similar vessel;
- bring equipment into and conduct testing in any place or premises;
- take photographs and videotapes of any place or premises; and
- require any person to provide information or produce any document or record.
Section 86(6) of the Act imposes an obligation on the owner, occupant or person in charge of a place or premises, and any other person found there, to give the inspector all reasonable assistance in carrying out their duties and to provide them with any information reasonably required.
Orders Dated March 27, 2020
On March 27, 2020, the provincial government had announced a series of four (4) public health orders under section 67(1) of the Act in response to COVID-19. Readers may access the full text of the March 27, 2020 orders here.
The previous orders included:
- Prohibition on public gatherings of more than 10 persons at any indoor or outdoor premises, including places of worship, social gatherings, weddings and funerals. The restriction did not apply to a health care facilities, retail businesses or public transportation facilities.
- Restrictions on dining in restaurants and other commercial facilities were food was served except in cases where the operator had limited capacity to 50% and provided that they had implemented measures to ensure one-meter separation between customers; and
- Prohibition on bingo gaming events and closure of all gyms and fitness centres.
The six orders announced on March 30, 2020 replace and, upon taking effect on April 1, 2020, have terminated the orders previously announced by the provincial government on March 27, 2020.
Given the severe consequence for non-compliance, anyone who is unsure how they or their business may be affected by the public health orders are encouraged to seek legal advice. MLT Aikins has established a multi-disciplinary COVID-19 Client Resource Centre to assist our clients in navigating the legal and regulatory challenges facing them in these uncertain times. Please visit the link below for more information, or feel free to reach out directly to any member of the response team to discuss your specific needs.
Disclaimer: This article provides only an overview of the special measures taken by the provincial government in response to COVID-19. It does not constitute or take the place of legal advice. Readers are cautioned against making any decisions based on this material alone and encouraged to seek legal advice tailored to their specific situation.