Non-compliance with business closure orders for non-essential operations in Quebec: what are the consequences?

On March 24, 2020, the Government of Québec issued the 223-2020 ministerial order (the “Order”) requiring the suspension of all workplace activities, with the exception of those providing priority services, until April 13, 2020. If you are uncertain whether your business is permitted to continue its activities, in whole or in part, we advise that you look into clarifying your particular situation.

Considering the mandatory nature of this type of government order, it is important to examine the penalties and recourses that apply in these circumstances.

Priority services and activities: what are the applicable penalties?

The Public Health Act (hereinafter the "Act") gives the Government of Québec the power to declare a public health emergency at the provincial level and to take certain measures to protect the health of the population. The Order was therefore adopted in accordance with this Act, which includes penalties ranging from $1,000 to $6,000 on persons who refuse to obey a ministerial order issued following the declaration of a public health emergency.^[1]

The Act makes no mention of the number of times that a penalty may be imposed on the same individual. In this respect, the legislator provides for the concept of a continuing offence in section 155 of the Code of Penal Procedure.^[2] According to this section, where an offence is committed over several days, without any mention to the contrary in the enabling legislation, it will be considered to constitute as many separate offences as there are days or parts of a day during which the offence has continued. The application of this section in the current context would mean that the fines provided for in the Act are re-applicable for each day of a continuing offence.

It should also be noted that fines imposed on repeat offenders are automatically doubled.^[3]

It is also worth considering, however, that in addition to the penal consequences, the impact on the reputation of the disobeying company may be considerable; public judgment of an offending company's conduct during the crisis can cause much greater long-term harm than the monetary fines provided for in the Act.

Whistleblowing and right of refusal in the workplace

A. Public denunciation of the employer

The current situation is conducive to whistleblowing by employees who believe, rightly or wrongly, that their employer is not a priority business or does not respect the government measures put in place in the context of the current public health crisis.

Under section 2088 of the Civil Code of Québec, the employee has a legal duty of loyalty to the employer. From this duty, the employee must act faithfully, discreetly and in good faith so as not to cause prejudice to their employer.

Considering this legal duty of the employee towards their employer, it appears from the case law that the following criteria must be met in order for an employee to publicly denounce their employer:

• All means of internal whistleblowing have been exhausted; ^[4]
• The employee is acting in good faith and is supported by serious and objective reasons;
• The extent of the public intervention is not disproportionate in light of the objective pursued;
• Only relevant and necessary facts are disclosed, after their accuracy has been confirmed.

Therefore, an employee who considers that their employer is not complying with government orders or the Order must, at a minimum, make the necessary checks by contacting their employer and exhaust the internal whistleblowing mechanisms provided for within the company before reporting the situation to the public authorities. An internal denunciation will thus enable the employer to reconsider its position and adapt it if necessary.

B. Exercise of the right of refusal

Moreover, a worker who considers their workplace to be dangerous due to COVID-19 could possibly exercise the right of refusal provided for in the Act respecting occupational health and safety. This mechanism allows workers to refuse to perform particular work if they have reasonable grounds to believe that the performance of that work would expose them to danger to their health, safety or physical well-being.

It should be noted that this Act refers to the concept of "danger" and not "risk", and therefore normally requires more than a simple possibility whose occurrence is uncertain. Consequently, a worker who exercises their right of refusal must be convinced that their work situation presents a real danger to their well-being and that any reasonable person in the same circumstances would reach the same conclusion.

If the employer and the worker's representative do not agree on the danger or the solution, they may request the intervention of a CNESST (Commission des normes, de l'équité, de la santé et de la sécurité du travail) inspector. If the workers believe that the danger is still present, they may maintain the refusal and wait for the CNESST inspector's intervention. The inspector will determine as soon as possible whether or not there is a danger justifying the right of refusal.