Ontario passes new law to extend certain COVID-19 Emergency Orders beyond declared state of emergency

July 24, 2020 | Karima Kanani, Kathryn M. Frelick, Kristen Vandenberg

On July 21, 2020, Bill 195, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Reopening Ontario Act”) received Royal Assent and will take effect on a day to be named by proclamation of the Lieutenant Governor.

The passing of the Reopening Ontario Act has not been without controversy.  Concerns have been raised by constitutional and civil liberties groups about the ability of the provincial government to continue its extraordinary powers, currently being exercised under the Emergency Management and Civil Protection Act (the “Emergency Act”) in circumstances where a public health emergency no longer exists.  Similarly, health sector labour groups have raised objections to the government’s continued ability to bypass collective agreements and bargaining rights through the extension of emergency orders.

Declaration of Emergency

Under the Emergency Act, the Ontario government may issue emergency orders during a declared state of emergency (“Emergency Orders”).  Since March 2020, 49 Emergency Orders (filed as regulations under the Emergency Act) have been issued in response to COVID-19. As the COVID-19 lockdown lifts and the province reopens, there are a number of Emergency Orders that will continue to be in effect to address ongoing public health and safety interests.  The Reopening Ontario Act provides the government with a mechanism to continue Emergency Orders (referred to in Bill 195 as “Orders”) issued during the COVID-19 state of emergency declared under the Emergency Act, notwithstanding termination of the declaration of emergency.

Once the Reopening Ontario Act takes effect, if the declaration of emergency under the Emergency Act has not already been revoked by the Government, it will be terminated at that time pursuant to the Reopening Ontario Act.

Extension of Emergency Orders

Emergency Orders under the Emergency Act still in force on the date the Reopening Ontario Act takes effect will continue as Orders under the Reopening Ontario Act and will remain valid for a period of 30 days. At the end of the 30-day period, Orders may be extended by the Lieutenant Governor in Council (or a delegated Minister) for additional periods of up to 30 days.

Limited Ability to Amend Orders

The Reopening Ontario Act allows the Lieutenant Governor in Council or a Minister with delegated authority to amend certain continued COVID-19 Orders where the amendment would have been authorized under the Emergency Act if the declared emergency was still in effect.

Amendments may only be made to address the following:

  • Requiring compliance with any advice, recommendation or instruction of a public health official;
  • Closing or regulating any place, whether public or private, including any business, office, school, hospital or other establishment or institution;
  • Providing for rules or practices that relate to workplaces or the management of workplaces (including credentialing processes in a health care facility), identification of staffing priorities or redeployment plans;
  • Prohibiting or regulating gatherings or organized public events; and
  • Transitional matters relating to the termination of the COVID-19 declared emergency, the enactment of the Reopening Ontario Act or the extension of Orders under the Reopening Ontario Act.

The Reopening Ontario Act also lists 14 continued Orders which cannot be amended, including Management of Long-Term Care and Retirement Homes in Outbreak, Special Rules re: Temporary Pandemic Pay, and Temporary Health or Residential Facilities. See a full list of Orders which cannot be amended can be found.

No New Orders

The Reopening Ontario Act does not provide the government with the ability to create any new Orders.

Reporting and Time Limit on Powers to Extend/Amend Orders

The Reopening Ontario Act requires the Premier or delegated Minister to report to the public “regularly” on Orders that continue to apply, and at least once every 30 days to report to the Legislative Assembly.

The powers to extend and amend Orders will remain in force for one year, but may be extended by resolution of the Legislative Assembly for a second year.

Enforcement Measures

The Reopening Ontario Act carries over the same strong enforcement measures that are available under the Emergency Act for failure to comply with an Order:

  • Individuals are liable on conviction to a fine of up to $100,000 and a term of imprisonment of up to one year;
  • Corporations are liable on conviction to a fine of up to $10,000,000; and
  • Directors and officers of corporations are liable on conviction of a fine of up to $500,000 and up to one year of imprisonment.

Each day that non-compliance with an Order continues is a separate offence.

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