COVID-19: The power of the government in a public health emergency

20 mars 2020 | Gerald D. Chipeur, Kathryn M. Frelick, Annie Alport, Alissa Raphael, Kelsey Sherriff, Ryan D. Kitzul

( Disponible en anglais seulement )

Governments across Canada are responding to the COVID-19 crisis by invoking powers available to them under public health and emergency management legislation.

The Governments of B.C. and Alberta have declared states of public health emergency under their respective public health legislation. The Governments of Ontario, B.C., and Saskatchewan have declared states of emergency under their respective emergency management legislation.

These declarations provide health officials with the authority and tools to prevent and/or control the spread of health hazards, such as a pandemic flu outbreak, by allowing officials to respond immediately to issues as they arise without typical notice and formal requirements, and by providing tools for information gathering and implementation of preventive measures (such as quarantines) in order to protect the public from significant harm. Each province is using these powers differently, and new measures to contain the spread of COVID-19 are being introduced every day.

In addition, on March 17, 2020, Prime Minister Justin Trudeau mentioned that the federal government is considering invoking the Emergencies Act. This would provide the federal government with powers and tools similar to those being employed by some of the provinces at this time.

This bulletin provides a summary of the powers available to the various levels of government in a public health emergency. It discusses the powers available under public health legislation and emergency management legislation in four provinces in Canada: British Columbia, Alberta, Saskatchewan and Ontario, as well as the powers available to the federal government under the Emergencies Act.

Public health and emergency management

In the event of a pandemic such as the COVID-19, governments may invoke powers under either public health legislation or emergency management legislation.

Public health legislation allows a government, and regional health authorities, to undertake a broad number of activities to manage responses to public health events such as pandemics.

Emergency management legislation, by contrast, allows a government to facilitate and support the coordination of responses to public health events as they change over time.

Some of the specific powers and authorities relating to public health and emergency management in Ontario, B.C., Alberta, and Saskatchewan, are set out below. The power available to the federal government under the Emergencies Act is also set out below.

Canada

Formerly known as the War Measures Act, the federal Emergencies Act was enacted in 1988 and has never been used. The Act sets out four types of emergencies:

  • Public Welfare Emergency;
  • Public Order Emergency;
  • International Emergency;
  • War Emergency.

It is likely that the COVID-19 crisis would be classified as a Public Welfare Emergency.

The Emergencies Act

The Emergencies Act would allow the government to do a number of things, including:

  • regulate or prohibit travel within any area of the country;
  • evacuate people;
  • requisition property;
  • direct any person to render essential services they are qualified to provide;
  • regulate the distribution of essential goods and resources;
  • make emergency payments and compensate those who experience loss as a result of actions taken under the Act;
  • establish emergency shelters and hospitals; and
  • impose fines between $500 and $5,000 or jail time between six months and five years, for contravening any order or rule set under the Act.

Alberta

The Public Health Act

On March 17, 2020, Alberta declared a public health emergency under Alberta’s Public Health Act. This allows the government or Alberta Health Services to do any or all of the following for the purpose of preventing, combating or alleviating the effects of a public health emergency and protecting the health of the public:

  • acquire or use property;
  • authorize or require any qualified person to provide aid;
  • authorize the conscription of persons needed to meet an emergency;
  • authorize the entry into any building or on any land, without warrant, by any person; and
  • provide for the distribution of essential health and medical supplies; and
  • provide, maintain and coordinate the delivery of health services.

The Emergency Management Act

The Government of Alberta has not yet invoked the powers available to it under the Emergency Management Act. If invoked, the government would have broad powers, including the power to:

  • acquire or use any property considered necessary to combat the effects of the emergency;
  • authorize or require any qualified person to render aid of a type that the person is qualified to provide;
  • control or prohibit travel to or from any area of Alberta;
  • provide for the restoration of essential facilities and the distribution of essential supplies and provide, maintain and coordinate emergency medical, welfare and other essential services in any part of Alberta;
  • authorize the entry into any building or on any land, without warrant, by any person; and
  • procure or fix prices for food, clothing, fuel, equipment, medical supplies or other essential supplies.

British Columbia

The Public Health Act

The Government of British Columbia declared a public health emergency on March 17, 2020.

The British Columbia Public Health Act grants powers similar to those under the Alberta Public Health Act. It also gives a health officer the power in an emergency to issue orders verbally when they would otherwise need to be done in writing, and to omit things from an order that would otherwise be required.

A health officer may conduct inspections of any premises, including private dwellings, without a warrant. He may also collect or disclose information, including personal information, that could not otherwise be collected, used or disclosed.

Furthermore, the provincial health officer may make an order authorizing health officers and environmental health officers to perform duties in geographic areas for which these individuals have not been designated.

The Emergency Program Act

The declaration of a provincial state of emergency in B.C. was made on March 18, 2020, pursuant to the Emergency Program Act which provides the legislative framework to manage disasters and emergencies in B.C. Declaring a provincial state of emergency allows the Minister to do a number of things, including:

  • implement a provincial emergency plan or measures;
  • authorize or require a local authority to implement a local emergency plan or measures;
  • acquire or use any land or personal property considered necessary to respond to the emergency;
  • authorize or require any qualified person to provide assistance to others to respond to the emergency;
  • control or prohibit travel to or from any area of B.C.;
  • provide for the restoration of essential facilities and the distribution of essential supplies;
  • provide, maintain, and coordinate emergency medical, welfare and other essential services in B.C.;
  • authorize the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan, if the Minister considers it necessary;
  • construct something that the Minister considers necessary to respond to the emergency; and
  • procure, fix prices for, or ration food, clothing, fuel, equipment, medical supplies or other essential supplies and the use of any property, services, resources, or equipment within any part of B.C.

Under the Public Health Act the government’s powers remain in effect until the emergency has passed, whereas the provincial state of emergency remains in effect for only 14 days, but can be renewed.

Ontario

The Health Protection and Promotion Act

The Health Protection and Promotion Act (“HPPA”) provides for the organization and delivery of public health programs and services, the prevention of the spread of diseases and the promotion and protection of health. The HPPA sets out the roles and authority of public health units, local medical officers of health (“MOH”) and the Chief Medical Officer of Health for the province.

Each local Board of Health is responsible for delivering local public health programs and services, including “control of infectious diseases and diseases of public health significance” within the geographic area it serves. This includes investigating and responding to all reports of suspected and confirmed cases of COVID-19.

Coronavirus, including COVID-19 is designated by regulation as a reportable “disease of public health significance” and “communicable disease” under the HPPA. Hospitals, institutions, physicians, practitioners and laboratories have mandatory obligations to report COVID-19 to the MOH.

The Emergency Management and Civil Protection Act

The Emergency Management and Civil Protection Act (“EMCPA”) requires municipalities and provincial government bodies to develop emergency management programs. It provides for emergency orders and powers when certain criteria are met. The declaration of a provincial state of emergency in Ontario was made pursuant to this Act on March 17, 2020.

An “emergency” is defined as “a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise”.

The EMCPA provides that the Lieutenant Governor in Council (“LGiC”) or in circumstances of urgency, the Premier, may issue an order declaring an emergency in part or all of the province. It may only be made if:

  • There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons; and
  • One of the following circumstances exists: i) the resources normally available to government cannot be relied upon without the risk of serious delay; ii) the resources are insufficient to effectively address the emergency; or iii) it is not possible, without the risk of serious delay, to ascertain whether the resources can be relied upon.

The EMCPA enables the LGiC to make orders to promote the public good by protecting the health, safety and welfare of Ontario residents in times of declared emergencies. During a declared emergency, the LGiC may make such orders as are “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons if it is reasonable to believe that, the harm or damage will be alleviated by an order; and making an order is a reasonable alternative to other measures that might be taken to address the emergency.”

The types of emergency orders that can be made by the LGiC are extremely broad and include:

  • implementing emergency plans;
  • regulating or prohibiting travel within any specified area;
  • evacuating individuals and making arrangements for their care and protection;
  • establishing facilities such as emergency shelters and hospitals;
  • closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution;
  • using any necessary goods, services and resources within any part of Ontario and/or making them available as necessary;
  • procuring necessary goods, services and resources;
  • fixing prices for necessary goods, services and resources; and
  • authorizing, but not requiring, a person to render services of a type that the person is reasonably qualified to provide.

Saskatchewan

The Public Health Act

The Government of Saskatchewan has not invoked the powers available to it under The Public Health Act. However, Saskatchewan’s Public Health Act allows the government, in response to an epidemic that poses a serious public health threat, to make any of the following orders if deemed necessary to decrease or eliminate the serious public health threat:

  • direct the closing of a public place;
  • restrict travel to or from a specific area of Saskatchewan;
  • prohibit public gatherings in a specified area of Saskatchewan;
  • in the case of a communicable disease, require any person who is not known to be protected against the disease to be immunized or given prophylaxis, or, where the person infected is a pupil, to be excluded from school until the danger of infection is past;
  • establish temporary hospitals;
  • an investigation into matters related to the serious public health threat and that the results of the investigation are to be provided to the government;
  • require any person who is likely to have information that is necessary to decrease or eliminate the serious public health threat to disclose that information to the government;
  • authorize the confiscation of substances or materials found in any place, premises or vehicle if those substances or materials are suspected of causing or contributing to a serious public health threat;
  • in the case of a communicable disease, require any person to be isolated from other persons until a medical health officer is convinced that isolation is no longer necessary to decrease or eliminate the transmission of the disease;

Saskatchewan’s Public Health Act further grants the government the authority to detain a person deemed to be endangering the lives, safety or health of the public as a result of a communicable disease for a period not exceeding the prescribed period of transmissibility of the disease. A right of review to the Court of Queen’s Bench exists for any detained person who wishes to challenge their detention.

The Emergency Planning Act

On March 18, 2020, the Government of Saskatchewan declared a state of emergency pursuant to The Emergency Planning Act. The declaration of a provincial state of emergency allows the Minister to do a number of things, including:

  • putting into operation an emergency plan or program;
  • authorizing or requiring a local authority such as the health authority to put into effect an emergency plan;
  • assuming direction and control of the emergency response of a local authority including health authority;
  • acquiring or utilizing any real or personal property;
  • authorizing a qualified person to render aid of a type that the person is qualified to provide;
  • controlling or prohibiting travel to or from any area of Saskatchewan;
  • restoring essential facilities and the distribution of essential supplies;
  • providing, maintaining and coordinating emergency medical, welfare and other essential services;
  • evacuating persons and removing persons or livestock and personal property from any area of Saskatchewan and arranging for their adequate care and protection;
  • authorizing entry into any building or on any land without warrant;
  • demolishing or removing trees, structures or crops if necessary or appropriate in order to reach the scene of the emergency, to forestall its occurrences or to combat its progress;
  • procuring or fixing prices for food, clothing, fuel, equipment, medical supplies or other essential supplies and the use of any property, services, resources or equipment;
  • conscripting persons needed to meet an emergency;
  • doing any act and taking any proceeding that are reasonably necessary to meet the emergency.

Subject to approval of the Lieutenant Governor in Council, where the Minister acquires, utilizes, damages or destroys real or personal property in preventing, combating or alleviating the effects of an emergency the Minister must pay compensation to the property owner for the acquisition, utilization, damage or destruction of the property.

 

Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.

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