Is Your Environmental Investigation “Essential”? Environmental Services during the COVID-19 Pandemic

  • May 21, 2020
  • Jessica Boily and Natalie Mullins

As the COVID-19 pandemic continues, Canadians are adjusting to a new way of life, characterized by physical distancing, closure of non-essential places of business and working remotely. One thing that has remained constant is that Canadian businesses are still required to comply with environmental obligations - but what about voluntary environmental work? Given provincial requirements to close “non-essential businesses” and no clear end of restrictions in sight, lenders, developers, and buyers and sellers of real estate, among others, may be wondering to what extent they can engage environmental consulting services at this time. Environmental consulting firms may be questioning what types of services they can continue to provide.

Essential Services – Federal Guidance

In Canada, Public Safety Canada released guidance on functions it considers essential in the context of the COVID-19 pandemic. The list of essential services and functions, found on their website, is meant to help provinces, territories and other local governments as well as the private sector in understanding and determining the scope of possible essential services. The guidance, however, is just that, and is not meant to act as a directive or law.

The federal list generally provides that the following industries (and support services provided for those industries) are essential: health, water, food, information and communications, electricity industry, natural and propane gas, petroleum workers, transportation, manufacturing, finance, safety and government.

Additionally, the federal list provides that the following activities are essential:

  • Care and maintenance of contaminated sites; and
  • Land registration services, real estate agent services, home inspection services, and moving services.

Essential Services – Provincial Order

Each province has provided its own list of businesses that are “essential” and may remain physically open during the pandemic. In Ontario, this list is found in an Order made under the Emergency Management and Civil Protection Act. This order is effective as of March 24, 2020 and was further updated on April 4, 2020. The list of essential services that may remain open is, in many cases, broadly worded and open to interpretation.

In its FAQ on essential businesses, the Government of Ontario directs business owners to review the list of essential services and determine whether their business fits into any of the categories listed. The Government of Ontario states that it will not provide written confirmation or advice on whether a business is essential. Those who fail to comply with the Order are subject to daily set fines of $750 or may be open to prosecution under the Provincial Offences Act. If convicted, violators could be sentenced to fines up to $100,000 and one year in jail for an individual; fines up to $500,000 and one year in jail for a director or officer of a corporation; or a fine up to $10,000,000 in the case of a corporation, for each day the offence continues.

The most recent version of the “essential services” list permits the following places of businesses to remain open, among others: