This update is part of a new series. We will provide a brief overview of the current state of federal and provincial emergency legislation, how our governments are using (and could eventually use) their statutory powers to confront COVID-19, and what the effects of their efforts on Canadian businesses might be. We will also canvass some of the constitutional constraints on government action.

In this update, we begin with Ontario’s Emergency Management and Civil Protection Act.

For our past updates, and for up-to-date information on COVID-19 and McCarthy Tétrault’s perspective on the legal issues it presents, please visit our dedicated hub here.

What you need to know

• Now that it has declared the COVID-19 pandemic to be a provincial emergency, the Ontario government has sweeping statutory powers at its disposal under the Emergency Management and Civil Protection Act (the “EMCPA”). Among other things, the Cabinet can impose intra-provincial travel restrictions, mandate further closures, establish emergency facilities, introduce price controls, and procure goods, services and resources that it deems necessary.
• Courts may be asked to review the government’s decisions under the EMCPA. They will do so with considerable deference in most cases. Courts will be less deferential when an order made under the EMCPA is alleged to intrude on an area of exclusive federal jurisdiction, such as the operation of airports, interprovincial railways, border security, ports, or navigation on the Great Lakes.
• If your business has been, or may be, affected by the provincial government’s response to COVID-19, then you may eventually be entitled to compensation. More immediately, however, you should consider whether your business may be impacted by the kinds of orders that the Cabinet is now empowered to make.

Understanding the Emergency Management and Civil Protection Act

On March 17, 2020, the Government of Ontario declared an emergency throughout the province in response to the COVID-19 pandemic – please see our colleagues’ summary, here. In doing so, the provincial government exercised and activated its powers under the EMCPA.

Specifically, the provincial Cabinet made an order under s. 7.0.1 of the EMCPA. Section 7.0.1 provides that:

[T]he Lieutenant Governor in Council [i.e., the provincial Cabinet] or the Premier, if in the Premier’s opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario.

In this update, we provide a brief historical overview of the statutory power to declare an emergency in Ontario. We also describe the current state of the law, and the sweeping powers that are now available to the provincial Cabinet under the EMCPA.

Where the legislation came from

The power to declare an emergency dates to (at least) the former Emergency Plans Act. It empowered the Premier, acting alone, to “declare that an emergency exists throughout Ontario or in any part thereof” and to “take such action and make such orders as [the Premier] considers necessary and are not contrary to law … to protect property and the health, safety and welfare of the inhabitants of the emergency area” (Emergency Plans Act, s. 7(1)).

After Ontario had weathered major ice storms in 1998, prepared for “Y2K”, and managed the aftermath of September 11, 2001, the province overhauled its emergency preparedness legislation. The Emergency Plans Act gave way to the Emergency Management Act in 2002. The power to declare an emergency and to make emergency orders remained with the Premier alone. The amended legislation also empowered the Cabinet, on the recommendation of the Attorney General, to “temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government Ontario” pertaining to limitation periods, court fees, or benefits or compensation “payable as a result of the emergency”, if “temporarily suspending the operation of the provision would facilitate providing assistance to victims of the emergency or would otherwise help victims and other members of the public to deal with the emergency and its aftermath” (Emergency Management Act, s. 7.1).

The Emergency Management Act became the Emergency Management and Civil Protection Act in 2006. The provincial legislature amended the legislation in a number of ways that reflected the province’s experience during the 2003 SARS outbreak. The 2006 amendments have shaped, and will continue to shape, Ontario’s response to COVID-19.

Specifically, in 2006:

• The definition of “emergency” was amended to include “a situation or an impending situation … that is caused by … a disease or other health risk” (EMCPA, s. 1 (“emergency”)). Until 2006, the legislation did not expressly contemplate emergencies caused by diseases.
• The power to declare an emergency was shifted from the Premier alone to the Cabinet, unless “in the Premier’s opinion the urgency of the situation requires that an order be made immediately” (EMCPA, s. 7.0.1(1)). If the Premier declares an emergency, the Cabinet must confirm the declaration within 72 hours, or else it lapses (EMCPA, s. 7.0.1(2)).
• Statutory criteria were added that must be satisfied before the Cabinet or the Premier may declare an emergency (EMCPA, s. 7.0.1(3)). These are discussed below.
• The Premier’s power to make emergency orders was largely (but not entirely) transferred to Cabinet. The amended legislation also set out a non-exhaustive list of matters in respect of which the government was empowered to make emergency orders (EMCPA, ss. 7.0.2(4), 7.0.3(1)-(2)). These matters are elaborated below.
• Expiration and renewal provisions were added. These limit: (1) the length of time for which Cabinet can extend an emergency declaration without obtaining the legislature’s approval (EMCPA, s. 7.0.7); and (2) the length of time for which Cabinet can extend orders made in response to the emergency (EMCPA, s. 7.0.8). These restrictions are discussed below.
• Cabinet’s power to “temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order” – including limitation periods or court fees – was expanded to include the power to “set out a replacement provision to be in effect during the temporary suspension period”. The 2006 amendments clarified that Cabinet may exercise these powers “when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario provides or may be prejudiced by the operation of the law of Ontario”. The legislature also broadened the range of provisions to which Cabinet could apply this power of temporary suspension and amendment to include any provision that “governs services, benefits or compensation” (EMCPA, s. 7.1).
• The legislature was given the power to “disallow the declaration of emergency … or the extension of an emergency” (EMCPA, s. 7.0.9), and a new requirement was imposed on the Premier to report to the legislature “in respect of the emergency … within 120 days after the termination of an emergency” (EMCPA, s. 7.0.10).

The 2006 amendments supply the basis for the provincial government’s response to the COVID-19 pandemic. Crucially, they are the reason that the Cabinet, rather than the Premier personally, will have the primary authority to make emergency orders in the days and weeks to come.

What the Premier and the Cabinet can do

Now that Cabinet has declared an emergency under s. 7.0.1 of the EMCPA, it may exercise sweeping powers to respond to that emergency. Many of these powers were specified when the legislation was amended in 2006, as described above.

Under s. 7.0.2(4) of the EMCPA, Cabinet may, among other things:

• “[r]egulat[e] or prohibit[] travel or movement to, from or within any specified area” (s. 7.0.2(4)2);
• “[e]stablish[] facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals” (s. 7.0.2(4)4);
• “[c]los[e] any place, whether public or private, including any business, office, school, hospital or other establishment or institution” (s. 7.0.2(4)5);
• with respect to “necessary goods, services and resources”, including “food, water, … clothing, equipment, transportation and medical services and supplies” (s. 7 (“necessary goods, services and resources”):
  • “procur[e]”, “distribut[e], and mak[e] available necessary goods, services and resources and establish[] centres for their distribution” (ss. 7.0.2(4)9-10); and
  • “[f]ix[] prices for necessary goods, services and resources and prohibit[] charging unconscionable prices in respect of necessary goods, services and resources” (s. 7.0.2(4)11);
• “[a]uthoriz[e], but not requir[e], any person, or any person of a class of persons, to render services of a type that that person … is reasonably qualified to provide” (s. 7.0.2(4)12, emphasis added); and
• “requir[e] that any person collect, use or disclose information that in the opinion of the [Cabinet] may be necessary in order to prevent, respond to or alleviate the effects of the emergency”. Such information will be “subject to any law with respect to the privacy and confidentiality of personal information” – but only “when the declared emergency is terminated” (ss. 7.0.2(4)13 and 7.0.2(7)2).

In addition to these and other specified powers, s. 7.0.2(4) of the EMCPA includes a “basket clause”. This empowers the provincial Cabinet to “[t]ak[e] such other actions and implement[] such other measures as the [Cabinet] considers necessary in order to prevent, respond to or alleviate the effects of the emergency” (s. 7.0.2(4)14). Such “actions” and “measures” must be “[c]onsistent with the powers authorized in” the rest of s. 7.0.2(4), however.

Unlike comparable legislation in other provinces and federally, and as highlighted above, the EMCPA does not include the power of conscription. Other jurisdictions have legislation that empowers their respective governments to require persons to provide services in emergencies. Ontario does not.

As noted above, in 2006, the provincial legislature transferred most of the emergency powers that the Premier could previously exercise personally to the Cabinet. The Premier retains significant personal powers under the EMCPA, however. In particular, provided that the Premier acts within the scope of existing statutory powers, the Premier may effectively function as a one-person government once an emergency has been declared; the Premier may “exercise any power or perform any duty conferred upon a minister of the Crown or an employee of the Crown by or under an Act of the Legislature” (s. 7.0.3(1)). The Premier may also effectively, and personally, take over a municipality’s response to the emergency (s. 7.0.3(2)).

Apart from these specific powers, however, the Premier may not make the sort of emergency orders described above; only the Cabinet, acting collectively, may do so. Both the Premier and the Cabinet may delegate their respective powers under the EMCPA “to a minister of the Crown or to the Commissioner of Emergency Management” (s. 7.0.4(1)).

Non-compliance risks significant penalties:

• Individuals may be fined up to $100,000 and imprisoned for up to one year for failing to comply with an order made under s. 7.0.2(4) of the EMCPA (s. 7.0.11(1)(a)).
• A corporation may be fined up to $10,000,000 for failing to comply, while its directors and officers may each be fined up to $500,000 and imprisoned for up to one year (ss. 7.0.11(1)(b)-(c)).

Despite these statutory maximums, a court may increase a fine “by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence” (s. 7.0.11(3)). Further, “[a] person is guilty of a separate offence on each day that an offence occurs or continues” (s. 7.0.11(2)). The government may also obtain a court order to force a person not to contravene, or to stop contravening, one of the Cabinet’s emergency orders (s. 7.0.5).

Limits on the government’s emergency powers

The provincial government’s powers under the EMCPA are not limitless. The three most significant constraints are: (1) parliamentary oversight requirements in the EMCPA itself; (2) the statutory language and the reviewing role of the courts; and (3) the Constitution, including the Charter of Rights and Freedoms. We will consider each of these in turn.

Parliamentary oversight

As noted above, the 2006 amendments imposed time limits on emergency declarations and orders made under the EMCPA. They also empowered the provincial legislature to disallow such declarations and orders.

The legislature’s oversight role, under the Ontario legislation, is less significant than Parliament’s oversight role under the analogous federal legislation, the Emergencies Act. Federally, as we will discuss in a subsequent update, Parliament must confirm the Cabinet’s emergency declaration at the outset, and subsequently has the power to revoke or amend individual emergency orders or regulations.

Provincially, the legislature has the power to disallow the emergency declaration (s. 7.0.9(1)). If it does so, all emergency orders are automatically revoked (s. 7.0.9(2)). However, the provincial Cabinet does not require the legislature to confirm its initial emergency declaration, which can last for up to 14 days (s. 7.0.7(1)). Nor does the Cabinet require the legislature to confirm an initial extension of the emergency declaration, which can last for up to 14 additional days (s. 7.0.7(2)). After the first extension expires, however, the Premier must seek and obtain the legislature’s approval for any further extensions, each of which may last up to 28 days (s. 7.0.7(3)).

The legislature’s role in reviewing emergency orders is even more limited. Orders made by Cabinet under s. 7.0.2(4) remain in force for 14 days, unless they are revoked sooner (s. 7.0.8(1)). They may be extended by Cabinet, or by a Minister to whom Cabinet has delegated its powers, for up to 14 additional days (s. 7.0.8(3)). The EMCPA allows the Cabinet to extend emergency orders more than once – including after the emergency declaration has lapsed or been discontinued by the legislature – “where the extension of the order is necessary to deal with the effects of the emergency” (ss. 7.0.8(4)).

As noted above, the legislature can revoke all of the Cabinet’s emergency orders at once by disallowing the emergency declaration (s. 7.0.8(2)). However, the EMCPA indicates that, even if the legislature does so, the Cabinet can nevertheless extend the effectiveness of emergency orders if it deems such extensions to be necessary. This suggests that, despite the legislative oversight provisions in the EMCPA, the provincial Cabinet can effectively continue emergency measures indefinitely, subject only to judicial review.

Judicial review

Even if the emergency declaration survives legislative scrutiny, it and any orders made by Cabinet, the Premier, or one of their delegates may be challenged in court. Broadly speaking, there would be two potential bases for judicial review of an emergency declaration or order made under the EMCPA: (1) inconsistency with the legislation itself, on administrative law grounds; and (2) inconsistency with the Constitution.

Administrative review

Courts have a constitutional duty to ensure that statutory decision makers act within the bounds of their delegated authority. By enacting the EMCPA in its present form, the Ontario legislature delegated considerable powers to the Cabinet and the Premier, to be exercised in exigent circumstances. Courts have a responsibility to oversee how Cabinet and the Premier exercise those powers. A judge would discharge this responsibility by applying the principles of administrative law in a judicial review proceeding.

In most judicial review proceedings, the question is whether the administrative decision maker (here, Cabinet or the Premier) has made a decision that exceeded the scope of, or was otherwise inconsistent with, the decision maker’s statutory grant of power (here, the EMCPA). The legislature limited Cabinet’s and the Premier’s powers under the EMCPA in two ways.

First, the legislature defined the sorts of exigent circumstances in which the Cabinet or the Premier can declare an “emergency”. Specifically, the situation must “constitute[] a danger of major proportions that could result in serious harm to persons or substantial damage to property” (s. 1 (“emergency”)), and the Cabinet or the Premier must be satisfied that the following criteria are met:

• “immediate action” is required “to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property” (s. 7.0.1(3)1); and
• the “resources normally available … , including existing legislation, cannot be relied upon without the risk of serious delay”, or the reliability of such resources cannot be ascertained without the risk of serious delay, or such resources “may be insufficiently effective to address the emergency” (s. 7.0.1(3)2)).

Second, the legislature also limited the Cabinet’s extraordinary power to make orders under s. 7.0.2(4) of the EMCPA by:

• prescribing the Cabinet’s specific powers make orders, as outlined above; and
• requiring the Cabinet:
  • to have believed that the orders made “are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or damage to property” (s. 7.0.2(2));
  • to have formed the opinion that “it is reasonable to believe” that: (i) the order will be effective at “alleviat[ing]” the harm of the emergency (s. 7.0.2(2)(a)); and (ii) “making an order is a reasonable alternative to other measures that might be taken to address the emergency” (s. 7.0.2(2)(b));
• requiring that emergency orders:
  • be implemented “in a manner which … limits their intrusiveness” (s. 7.0.2(3)1);
  • “only apply to the areas of the Province where it is necessary” (s. 7.0.2(3)2); and
  • only be effective “for as long as is necessary” (s. 7.0.2(3)3).

An emergency declaration or order, or regulation could be challenged on the basis of an alleged inconsistency with the EMCPA on any of these grounds. The Divisional Court – or, in urgent circumstances, the Superior Court of Justice – could, in theory, quash an emergency declaration or order pursuant to ss. 2 and 6 of the Judicial Review Procedure Act because:

• Cabinet or the Premier erroneously concluded that the criteria for declaring an “emergency” were satisfied;
• Cabinet exceeded the limits on its power to make orders under s. 7.0.2(4) of the EMCPA, by:
  • making an order that does not fit into, or is not consistent with, the powers specified in s. 7.0.2(4) of the EMCPA;
  • not believing (or not reasonably believing) that an order was “necessary and essential in the circumstances”, that it would be effective, or that it was a reasonable alternative to other measures; or
  • making or implementing an order in a manner that did not limit its intrusiveness, geographic scope, or duration.

In practice, the court would be highly unlikely to quash an emergency declaration or order on any of these grounds. This is because the legislature has clearly committed the question of whether a “emergency” exists – and the determination of the “necessary and essential” measures to respond to that emergency – to Cabinet (and, in the case of the emergency declaration, to the legislature), not to the courts.

For this reason, in exercising its powers under the EMCPA, the provincial Cabinet will enjoy a wide margin of deference. A judge would not second guess the government’s response to a bona fide emergency on the basis of an alleged inconsistency with the EMCPA, unless it were established that the government’s interpretation of the legislation, its assessment of the situation, or its actions taken under it were so off the mark as to be “unreasonable” as a matter of administrative law. Only then would a court intervene.

Constitutional review

When the Ontario legislature amended the EMCPA in 2006, it added s. 7.0.2(1) just before the provision that specifies the Cabinet’s powers to make orders in response to an emergency:

The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.

Even without this reference, the Charter would apply to (and constrain) the province’s response to an emergency under the EMCPA. Orders made by the provincial Cabinet under s. 7.0.2(4) could be challenged in court as inconsistent with the Charter. For example:

• an order that restricts or prohibits individuals’ movements “to, from or within any specified area” under s. 7.0.2(4)2 of the EMCPA could limit the “freedom of peaceful assembly” under s. 2(c) of the Charter, or “the right … to move to and take up residence in any province” under s. 6(2)(a) of the Charter, or even “the right not to be arbitrarily detained or imprisoned” under s. 9 of the Charter;
• an order that “[c]los[es] a[] place, whether public or private”, such as “a[] business, office, school, hospital or other establishment or institution” under s. 7.0.2(4)5 of the EMCPA could, depending on the circumstances, limit “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” under s. 7 of the Charter, or “the right to the equal protection and equal benefit of the law without discrimination” under s. 15(1) of the Charter; and
• an order that requires the “collect[ion], use or disclos[ure] [of] information” under 7.0.2(4)13 of the EMCPA could limit “the right to be secure against unreasonable search or seizure” under s. 8 of the Charter.

If an order made under the EMCPA (or a provision of the legislation itself) were challenged on constitutional grounds, and if the court concluded that the order (or provision) limited a Charter right, then the government would have to satisfy the court that the limit on the Charter right was (or is) “reasonable”, “prescribed by law”, and “demonstrably justified in a free and democratic society” under s. 1 of the Charter. Whether the government would succeed in this would depend on the facts, but Cabinet’s assessment of the costs and benefits of its emergency response would likely receive considerable deference.

Only the legislature, not Cabinet, can invoke the “notwithstanding clause” in s. 33 of the Charter. If an order under the EMCPA were struck down as an unconstitutional infringement of a Charter right, then the government could only re-impose it if the legislature enacted new legislation. Such legislation would need to declare expressly that it would operate notwithstanding the Charter.

Finally, the EMCPA itself, or an order made under it, could be challenged as exceeding the Ontario legislature’s constitutional jurisdiction. Section 91 of the Constitution Act, 1867 gives Parliament “exclusive Legislative Authority” over, among other things: “The Regulation of Trade and Commerce” (s. 91(2)); “Navigation and Shipping”, including across the Great Lakes (s. 91(10)); and “Quarantine” (s. 91(11)). Additionally, the courts have recognized that Ottawa has exclusive jurisdiction in a number of other areas, including over “the operation of airports” (Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, at para. 72).

Unlike Parliament, provincial legislatures (and the provincial governments they empower by statute) cannot intrude on areas of federal jurisdiction in their efforts to address emergencies. If a court determined that an order made under the EMCPA trenched on the “core” of a federal power, and that the order’s effect on the federal power was sufficiently serious, then the order would have to be quashed, either as beyond the scope of the Cabinet’s authority under the EMCPA, or as ultra vires (beyond the jurisdiction of) the province.

Conclusion

Now that it has declared the COVID-19 pandemic to be a provincial emergency, the Ontario government has sweeping statutory powers at its disposal under the EMCPA. It must use those powers in a manner consistent with the legislation and the Constitution, but it has enormous latitude to make orders that it deems necessary to address the crisis. The courts have a constitutional responsibility to oversee Ontario’s use of its authority, but they will approach the government’s decisions with considerable deference.

If your business has been, or may be, affected by the provincial government’s response to COVID-19, you may eventually be entitled to compensation (EMCPA, s. 13.1(3)). More immediately, however, you should consider whether your business may be impacted by the kinds of orders that the Cabinet is empowered to make under s. 7.0.2(4) of the EMCPA, such as: intra-provincial travel restrictions, mandated closures, the establishment of emergency facilities, price controls, or the procurement of necessary goods, services and resources.

As the global response to COVID-19 continues to evolve, the Ontario government may impose any of all of these measures on short notice. The time to prepare is now.

For more information about the content of this update, or to discuss legal issues arising in your organization’s response to COVID-19, please contact Lara Nathans, Trevor Lawson, or one of the authors.