Executive Summaries Jun 12, 2020

How to Avoid Penal Liability in Your Post-COVID Activities

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Although companies may wish to continue their activities, they must put in place measures to ensure compliance with their legal obligations and minimise the risk of incurring penal liability.

Because of the COVID-19 pandemic, the governments of Quebec and Canada have been adopting various measures for several weeks now, some in the form of obligations, others in the form of recommendations, in order to manage this exceptional health crisis.

Although they are understandably anxious to ensure their sustainability and prosperity, businesses must take the necessary means to respect their legal obligations and adapt government recommendations on health standards to the needs of their companies.

A Look Back at Pandemic-related Measures and Legal Obligations Relating to Employee Health

Specific measures related to the pandemic

On March 13, 2020, the provincial government passed Order-in-Council 177-2020 declaring a state of health emergency for the first time in history. This declaration, made under sections 118 et seq. of the Public Health Act, was initially in effect until March 23, 2020, and has since been subject to successive renewals.¹

At the same time, based on section 123, the provincial government also adopted various orders in council and ministerial orders to protect the public². Quebec was therefore put on pause as of March 25, 2020, while non-priority services and activities were reduced to a minimum³.

Although the government has put a form online for businesses that do not know whether their services are essential, ultimately, the assessment of this qualification is left to the businesses’ discretion. However, while it may be relatively simple for businesses or organizations whose activities are targeted and restricted, and are specifically covered by the Decree, the analysis of qualification as priority services may be more complex for a business whose activities are very diversified.

While compliance with the measures relating to the cessation of non-essential activities is mandatory, and failure to do so can have serious consequences, as we will see below, other measures have been taken in the form of recommendations and are therefore not binding. For example, where possible, employers are encouraged to promote telework. In order to equip sectors offering priority services and activities in the implementation of preventive measures, the Institut national de santé publique du Québec has also produced various interim recommendations.

In addition to minimizing non-priority services and activities, the provincial government has put in place many other measures to protect the health of the population that must be taken into consideration by employers according to their specificities, including:

Social distancing measures. In the workplace, a two‑metre distance between individuals must be maintained as much as possible. While it has not been recommended since the beginning of the crisis, the wearing of face coverings is now strongly recommended by provincial authorities, especially when the two-metre distance cannot be respected.
Travel restrictions. Although entry and exit bans of certain health regions or territories in Quebec have now been lifted, at this time, travel between regions remains discouraged. Both levels of government are also calling for the avoidance of all non-essential travel outside the country.
Hygiene. Frequent hand washing and covering coughs and sneezes are recommended.

The federal government's requirement for isolation or quarantine for all travellers (subject to certain exceptions) entering Canada⁴ should also be considered by employers whose employees are travelling on business or returning from vacation.

On April 27 and 28, 2020, the provincial government began implementing the gradual resumption of activities under the COVID-19-related pause. To limit the risks associated with the spread of the virus, it remains essential to continue to follow the various health guidelines.

Legal obligations regarding employee health

The general obligation of employers to protect their employees exists for corporations even outside the unprecedented context we are currently experiencing.

In Quebec, for companies under provincial jurisdiction, the purpose of the Act respecting occupational health and safety (hereinafter the "AOHS") is the elimination at the very source of dangers to the health, safety and physical integrity of workers. Among the employer's general obligations is the obligation to take the necessary measures to protect the health and ensure the safety and physical integrity of the worker. These obligations are also found in article 2087 of the Civil Code of Québec. As such, the employer must, in particular:

ensure that the establishments over which he has authority are equipped and arranged in such a way as to ensure the protection of the worker,
designate staff members to deal with health and safety issues,
ensure that the organization of the work and the methods and techniques used to perform it are safe and do not harm the health of the worker,
control the maintenance of the workplaces,
use methods and techniques to identify, control and eliminate risks which may affect the health and safety of the worker, and
adequately inform the worker about the risks related to his work and provide him with the appropriate training, coaching and supervision to ensure that the worker has the skills and knowledge required to safely perform the work assigned to him.

The employee, for his part, has the corollary obligations to take the necessary measures to protect his health, safety or physical integrity, to ensure that he does not endanger the health, safety or physical integrity of other persons around at the workplace or nearby and to participate in the identification and elimination of the risks of work accidents and occupational diseases in the workplace.

While the notion of danger refers to a real threat, the notion of risk corresponds to an event whose occurrence, although possible, is uncertain. It appears from the OHSA that the employer must take reasonable measures to eliminate both.

In the context of COVID-19, we are of the opinion that the employer must ensure that the measures it normally puts in place to protect the health, safety and physical integrity of its employees remain appropriate. If they are not, it must adapt them to protect its employees from the risks of contamination.

Thus, it is strongly recommended that the employer comply with government measures, including those that are not legally binding, insofar as this would have the effect of endangering employees or creating risks that could affect their health and safety.

Offences that May Give Rise to Criminal Liability of Companies and their Officers, Directors and Employees

Provincial offences and defences

As for emergency measures taken by the provincial government, the Public Health Act provides for a fine of $1,000 to $6,000 for obstructing or hindering public authorities, refusing to obey an order that the latter are entitled to give and refusing to give access to or communicate information or documents that they are entitled to demand. A fine of the same amount is provided for, inter alia, in the case of false declaration. In the event of a repeat offence, the fines are doubled.

The Public Health Act does not contain any specific provision regarding directors and officers, but provides that anyone who assists, encourages, advises, consents, authorizes or orders such acts is liable to the same penalty.

These offences are presumably strict liability offences, which means that there is no proof of guilty mind required. Defences to these offences include the defence of due diligence and error of law. On this subject, we also invite you to read the article by our colleague Isabelle Landry: COVID-19: Your Defences Against a Statement of Offence.

Thus, a company that maintained its activities while it was not considered a priority could receive a statement of offence. On the other hand, a company that did so after the Ministère de l'Économie et de l'Innovation confirmed that it could continue its priority activities could probably invoke the defence of error of law caused by a person in authority.

In addition to a fine, an offence committed under the Public Health Act may result in an arrest without warrant under section 75 of the Code of Criminal Procedure, if the arrest is the only reasonable means available to the peace officer to stop the commission of the current offence.

It should also be noted that in the event that a workplace does not comply with the guidelines issued by the government, and that the employer does not take charge of the biological risk related to COVID-19, a Commission des normes, de l'équité,de la santé et de la sécurité du travail (“CNESST”) inspector could require the closure of that workplace until corrective measures are taken, if an inspector deems that there is a danger to the health, safety or physical integrity of workers.⁵

In the event of a first infraction of the OHSA or its regulations, an individual is liable to a fine of $600 to $1,500, and a corporation is liable to a fine of $1,500 to $3,000. Furthermore, any person who, by act or omission, acts in such a way as to directly and seriously compromise the health, safety or physical integrity of a worker commits an offence. For a first offence of this nature, a natural person is liable to a fine of $1,500 to $3,000, and a legal person to a fine of $15,000 to $60,000.

In addition, presumptions are provided to facilitate proof. Thus, proof that an offence was committed by a representative, mandatary or worker employed by an employer is sufficient to establish that it was committed by that employer unless it establishes that the offence was committed without its knowledge or consent, and despite the measures taken to prevent its commission.⁶

Furthermore, where a legal person has committed an offence, any director, officer, employee or representative of that legal person who has prescribed or authorized the act or omission constituting the offence is deemed to have participated in the offence and is liable to the same penalty as a natural person, whether or not the legal person has been prosecuted or convicted.

These offences are also of strict liability, not requiring proof of guilty intent. Only an infraction of the OHSA or its regulations will be required in the first case, and in the second case, an action or omission that directly and seriously compromised the health, safety or physical integrity of a worker, without the need for a consequence of this nature to have materialized. Here again, the defences available include the defence of due diligence and the defence of error of law caused by a person in authority.

As for the worker, section 240 of the OHSA provides that proof that an offence for which he is being prosecuted was committed following formal instructions from his employer and despite the worker's disagreement is sufficient to exempt him from liability.

An employer who has legally resumed its activities either because they are a priority or authorized under the government's recovery plan, and who neglects to put in place protocols to ensure the protection of its employees in the context of the COVID-19 pandemic, may have difficulty defending itself against criminal charges under the OHSA.

Federal offences and defences

With respect to actions taken by the federal government under the Quarantine Act, a person who contravenes the Quarantine Act is liable to a fine of up to $750,000 and/or imprisonment for up to six months. This Act provides for a number of other offences that may apply during the COVID-19 crisis, including one that provides that every person who, by intentionally or recklessly contravening it, exposes another person to an imminent danger of death or serious bodily harm is guilty of an offence punishable by a maximum fine of $1,000,000 and/or imprisonment for a term not exceeding three years.

Specific provisions regarding the liability of directors and officers are also set out in articles 73 and 74 of the Act. For example, the company and, where applicable, its directors and officers, could be liable for offences if they force an employee returning from abroad to violate his or her obligation to isolate or quarantine himself or herself. If, on the other hand, an employer has a protocol in place that includes notification of off-site travel and ensuring that quarantine is respected, the employer may be able to make a valid defence to a charge, for example, in the case that the employee did not follow the guidelines in place and reported to the workplace the day after returning from abroad.

How Can We Deal with the Pandemic within Societies?

In order to avoid exposure to the sanctions outlined above, we believe that companies should focus on two things:

compliance with government measures and their legal obligations, and
the health of their employees, but also of anyone doing business with them.

The following are examples of the measures that companies should put in place to ensure that they meet their obligations while pursuing or resuming its activities, while taking into account their reality:

Make sure to be aware of and comply at all times with the government measures in force and the legal obligations related to COVID-19, and report regularly to the Board of Directors on these subjects;
Adopt a contingency plan that sets out the measures to be put in place related to COVID-19 and the internal resources responsible for doing so;
Keep employees informed at all times and be transparent with them;
Establish a clear communication channel for employees on all matters related to COVID-19;
Seek expert assistance as required, whether legal, financial, human resources, medical or health-related;
Ensure the health of employees on a daily basis, for example by means of a questionnaire, before they enter the workplace⁷;
Ensure frequent cleaning and disinfection of the workplace, including sanitary facilities, eating areas, and tools and equipment, as well as the proper operation and maintenance of ventilation systems (which may be wholly or partly the responsibility of the landlord);
Promote recommended hygiene measures and provide training and equipment to employees in this regard;
Rethink the physical premises and the organization of work in order to respect social distancing in particular;
Encourage teleworking where possible⁸;
Avoid non-essential work-related travel;
Ensure that both personal and business travel plans of employees are known internally to meet any resulting isolation and quarantine obligations, if applicable;
Avoid face-to-face meetings whenever possible;
Provide a confidential internal communication channel to allow employees to report within the company any behaviour that may be inconsistent with existing government measures and legal obligations;
Keep a record of actions taken and access to the workplace to the extent possible, as this can be very useful in the event that a case of COVID-19 occurs, or if it is necessary to demonstrate the actions taken to a CNESST inspector, or as part of a criminal charge.

The adoption of such measures will greatly minimize the risk for a company, its directors, officers and employees to incur any legal liability.

The COVID-19 pandemic crisis, far from being over, brings with it its share of uncertainty and challenges. In order for it to become the engine of positive change for the society it has the potential to be, it is up to Quebec companies to stay on the lookout, be creative and proactive and pursue their development while ensuring the health of their employees and third parties. Our Labour and Employment Law and Penal Law teams can help you avoid the commission of the offences discussed in this article and defend yourself against them, if necessary. If you have any questions about labour and employment law or penal law, please do not hesitate to consult our experts:

[1] Article 119 provides that a state of emergency is valid for a maximum period of 10 days, at the end of which the Government may renew it for further periods of 10 days or, with the consent of the National Assembly, for maximum periods of 30 days. The Government may terminate the state of health emergency as soon as it considers that it is no longer necessary under section 128. The National Assembly may also disavow a declaration of health emergency under section 122.
[2] With respect to any of the enabling provisions of section 123, it should be noted that several orders in council and ministerial orders have put in place measures that may raise questions as to their validity. Thus, it is possible to foresee that challenges may arise, the main reason being the lack of legislative authority for the adoption of certain decrees and ministerial orders.
[3] Decree 223-2020 of March 24, 2020 (hereinafter the "Decree")
[4] These measures were taken pursuant to section 58 of the Quarantine Act, S.C. 2005, c 20. See Order in Council No. 2 to reduce the risk of exposure to VIDOC-19 in Canada (requirement for isolation), P.C. Number : 2020-0260, April 14, 2020. All of the measures taken by the federal government can be found here: https ://www.justice.gc.ca/eng/csj-sjc/covid.html.
[5] However, it should be mentioned that this is an exceptional measure. In practice, as long as there is no danger noted, an inspector will instead issue a corrective notice requiring the employer to comply with the obligations set out in the Act and its regulations.
[6] It could be argued that section 239 of the OHSA violates the right to presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.).
[7] However, this widespread practice will have to stop at the end of the current pandemic. Although justified at present, in a "normal" context, it would pose a problem with respect to the right of every person to respect for his or her private life, protected by section 5 of the Charter of Human Rights and Freedoms, RLRQ, c C-12.
[8] In this respect, a good practice is to have a policy on telework, clearly stating that it is a privilege granted to employees and setting out the obligations of employees and the employer.

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