The Federal Government Provides Guidance on Essential Services and Functions in a COVID-19 Environment

Prior to the COVID-19 outbreak, there was scant information on essential services in cases of emergencies on the Canada.ca website.

The third edition of Canada's Emergency Management Framework[1] is silent on the issue as it focuses on the linkages between climate change and emergency management. Canada's National Strategy for Critical Infrastructure[2] identifies ten industry sectors that provide essential services or have the necessary processes, systems, facilities, technologies, networks, and assets to support the health, safety, security or economic well-being of Canadians and the effective functioning of government during an emergency. They are:

• Energy and Utilities
• Information and Communication Technologies
• Finance
• Manufacturing
• Food
• Safety
• Government
• Transportation
• Health
• Water

Last week, Public Safety Canada released a document entitled, Guidance on Essential Services and Functions in Canada during the COVID-19 Pandemic^[3] ("Guidance Document"). Building on Canada's National Strategy for Critical Infrastructure, the Guidance Document provides a description of 167 essential services and functions that fall under the ten critical infrastructure sectors listed above.

The Guidance Document clarifies the meaning of essential functions and services for the purposes of "critical infrastructure security and resilience".^[4] It also confirms that critical infrastructure workers (e.g. IT and communications technologies, hydro, natural gas) and workers employed in food production, processing, packaging, and distribution as well as food inspection services "are considered essential to preserving life, health and basic societal functioning".^[5]

At this time, the federal government has not invoked the Emergencies Act^[6] and the powers under it. The Emergencies Act gives the government the authority to declare a "public welfare emergency" that grants "extraordinary powers" to ensure the safety and security of Canadians. These powers confer upon the federal government the power to designate "essential" services, to regulate the distribution and availability of essential goods, services and resources, and to impose fines, and jail terms to anyone who contravenes the order.^[7]

During the past three weeks, Prime Minister Trudeau has repeatedly stated in his COVID-19 statements and media briefings that the Emergencies Act is a measure of last resort. The Prime Minister would consider declaring a "public welfare emergency" under the Emergencies Act, if the provinces request assistance from the federal government to combat COVID-19.

Since the COVID-19 outbreak, provincial governments across Canada have declared states of emergency and/or states of public health emergency. Under the extraordinary powers conferred to them by the emergency declarations, all provinces have classified business functions or services as "essential" or "non-essential". Several provinces such as Ontario, Québec, Alberta, Saskatchewan and Manitoba have enacted orders or regulations, mandating the closing of "non essential" businesses.^[8] Essential workplaces that remain open must put the necessary measures in place to protect the health and safety of their employees and the public, including safe physical distancing and hand washing.

The classification of a business function or service as "essential" or "non‐essential" varies from province to province, creating a patchwork of rules and regulations for businesses that operate across Canada. A business that meets the criteria for an "essential" service in one province may not meet the criteria of "essential" service in another province.

The federal Guidance Document underscores the need to "assist in enabling the movement of critical infrastructure workers within and between jurisdictions" ^[9] in circumstances where non-essential travel is restricted. It also reflects an attempt at harmonization of criteria underpinning the classification of "essential" and "non-essential" services across Canada "to support the efforts of provinces, territories and municipalities"^[10] in their fight against COVID-19.

On April 3, the Government of Ontario updated its list of essential services and directed additional businesses to close by promulgating regulations under subsection 7.0.2. (4) of the Emergency Management and Civil Protection Act.^[11] While the regulations reduce the list of essential services from 74 to 44 categories of businesses, they reflect an intent to achieve alignment with other jurisdictions. Regarding supply chains, the regulations state that "supply businesses or services that have been declared essential in a jurisdiction outside of Ontario" are also essential in Ontario^[12], bolstering the federal government's pledge to protect the free flow of essential goods and services across Canada and between Canada and the U.S. during the COVID-19 pandemic.

The federal Guidance Document provides businesses with an additional tool to self-identify as essential. The list of essential services is non-exhaustive and advisory in nature. As part of your assessment, consider whether all or portions of your business may fit into the available exemptions in the applicable jurisdiction(s), in which you operate to qualify as "essential", having regard to all relevant factors. Should you wish to have your business designated as an "essential" service, please reach out to the COVID-19 dedicated team at Gowling WLG for support and questions.