COVID-19: Can they do that? Part III: British Columbia’s Emergency Program Act and Public Health Act

This update is part of a continuing series. We are providing 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 are also canvassing some of the constitutional constraints on government action.

In this update, we consider British Columbia’s Emergency Program Act and Public Health 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

  • On March 18, 2020, British Columbia declared a “state of emergency” under the Emergency Program Act (the “EPA”). Declaring a state of emergency enables the B.C. government to exercise sweeping statutory powers under the EPA. Among other things, the government can prohibit travel to or from any area of the province, conscript persons to render assistance of a type that they are qualified to provide, and procure, fix the prices of, or ration food, clothing, fuel, equipment, medical supplies or other essential supplies.
  • On March 17, 2020, the day before the provincial government declared a state of emergency, British Columbia’s Provincial Health Officer, Dr. Bonnie Henry, declared a “public health emergency” under the Public Health Act (the “PHA”). The declaration of a public health emergency unlocked a range of emergency powers under the PHA. Among other things, the PHA now empowers the Provincial Health Officer to issue verbal orders that have immediate effect.
  • Courts may be asked to review the government’s decisions under the EPA or the PHA. They will do so with considerable deference in most cases. Courts will be less deferential when an order made under the EPA or the PHA is alleged to intrude on an area of exclusive federal jurisdiction, such as the operation of airports, interprovincial infrastructure, border security, or ports.
  • If your business has been, or may be, affected by the British Columbia government’s response to COVID-19, you may eventually be entitled to compensation, at the government’s discretion. More immediately, however, you should consider whether your business may be impacted by the kinds of orders that the provincial government is now empowered to make.

In this update, we provide a brief historical overview of the Emergency Program Act and the Public Health Act in British Columbia. We then describe the current state of the law, the powers available to the provincial government under each act, and the limits on those powers.

The Emergency Program Act

The Emergency Program Act (the “EPA”) and its associated regulations, represent the legislative framework for the management of disasters and emergencies in British Columbia. Under s. 9(1) of the EPA, “the Lieutenant Governor in Council [i.e., the Cabinet] may, by order, declare a state of emergency relating to all or any part of British Columbia”.

The EPA has not been updated since it was passed in 1993. However, following record-setting flood and wildfire seasons in 2017 and 2018, the B.C. government is now in the process of modernizing the EPA. According to the government, it plans to modernize the EPA to support more effective emergency management by incorporating international best practices. The government expects to introduce the new EPA in the fall of 2020, and to implement it by spring 2021.

If the Minister of Public Safety or the Cabinet as a whole is satisfied that an emergency exists or is imminent, the Minister or the Cabinet may declare a state of emergency under s. 9(1) of the EPA. The Minister may then exercise sweeping powers to respond to that emergency.

Under s. 10(1) of the EPA, the Minister may do all acts and implement all procedures that the Minister considers to be necessary to prevent, respond to, or alleviate the effects of an emergency or a disaster, including, among other things:

  • “acquire or use any land or personal property considered necessary to prevent, respond to or alleviate the effects of an emergency or disaster” (s. 10(1)(d));
  • “authorize or require [e., conscript] any person to render assistance of a type that the person is qualified to provide or that otherwise is or may be required to prevent, respond to or alleviate the effects of an emergency or disaster” (s. 10(1)(e), emphasis added);
  • “control or prohibit travel to or from any area of British Columbia” (s. 10(1)(f));
  • “provide for … the distribution of essential supplies and provide, maintain and coordinate emergency medical, welfare and other essential services in any part of British Columbia” (s. 10(1)(g));
  • “authorize the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan or program or if otherwise considered by the minister to be necessary to prevent, respond to or alleviate the effects of an emergency or disaster” (s. 10(1)(i));
  • “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 British Columbia for the duration of the state of emergency” (s. 10(1)(l)).

A person who contravenes the EPA or a regulation made under it, or who “interferes with or obstructs any person in the exercise of any power or the performance of any duty conferred or imposed under this Act”, may be fined up to $10,000, imprisoned for up to one year, or both (s. 27).

Section 9(4) of the EPA provides that a declaration of a state of emergency expires 14 days after it is made. However, Cabinet can extend the declaration indefinitely, 14 days at a time. When, in the opinion of the Minister or Cabinet, an emergency no longer exists, the Minister or Cabinet must make an order cancelling the declaration of a state of emergency (s. 11(1)).

The Public Health Act

The Public Health Act (the “PHA”) addresses current and emerging public health issues. It provides the Minister of Health, public health officials, and others with tools to respond to public health emergencies, including powers to gather information, conduct inspections, and issue orders.

In 2009, the PHA replaced the former Health Act. The Health Act was introduced in 1893, and had not been substantially overhauled in more than a century. According to the B.C. government of the day, the updated legislation was intended to prepare the province to deal with modern health concerns such as SARS, pandemic influenza, bio-terrorism, the rising burden of chronic diseases, and the need to focus on disease prevention.

The PHA introduced important changes to the emergency powers under the former Health Act. It enhanced the powers of public health officials to take immediate action in the event of a public health emergency, so that those officials would have the authority to take necessary action to protect public health. Among other legislative reforms, the PHA:

  • modernized the powers of public health officials to respond to a public health emergency (g., powers to conduct inspections, issue orders, and impose quarantine and isolation measures);
  • introduced powers to order groups of people to take prevention measures to control a health hazard and to regulate operations, activities, or conditions that could pose a health hazard; and
  • modernized the legislation’s enforcement, sentencing, and penalty provisions.

Part 5 of the PHA sets out the emergency powers available to medical health officers, the Provincial Health Officer, and the Minister of Health in a public health emergency. It provides that emergency powers under the PHA are available in response to an event that poses an immediate and significant risk to public health in a localized area, throughout a region, or across the entire province.

A person must not exercise emergency powers in respect of a province-wide situation unless the Provincial Health Officer provides notice that she reasonably believes at least two of the following criteria exist: (a) the situation could have a serious impact on public health; (b) the situation is unusual or unexpected; (c) there is a significant risk of the spread of an infectious agent or a hazardous agent; or (d) there is a significant risk of travel or trade restrictions (s. 52(2)).These criteria are similar to those applied by the World Health Organization when determining the existence of an international public health emergency.

If the Provincial Health Officer determines that an emergency exists, she may:

  • “act in a shorter or longer time period than is otherwise required” (s. 54(1)(a)), “not provide a notice that is otherwise required” (s. 54(1)(b)), or “do orally what must otherwise be done in writing” (s. 54(1)(c));
  • “conduct an inspection at any time, with or without a warrant, including of a private dwelling” (s. 54(1)(j)); and
  • “collect, use or disclose information, including personal information, … that could not otherwise be collected, used or disclosed, or … in a form or manner other than the form or manner required” (s. 54(1)(k)).

In an emergency, the Provincial Health Officer or a medical officer may also order a person to take preventive measures (s. 56(1)). Such measures may include:

  • “being treated or vaccinated” (s. 16(1)(a));
  • “taking preventive medication” (s. 16(1)(b));
  • “washing with, applying or ingesting a substance, or having a substance injected or inserted” (s. 16(1)(c));
  • “undergoing disinfection and decontamination measures” (s. 16(1)(d));
  • “wearing a type of clothing or other personal protective equipment” (s. 16(1)(e)); or
  • “using a type of equipment or implementing a process, or removing or altering equipment or processes” (s. 16(1)(f)).

If a person does not comply with an order to take preventive measures under s. 56(1), the Provincial Health Officer may apply to a judge of the Provincial Court for an order to detain the person (s. 56(4)).

The authority to exercise emergency powers under Part 5 of the PHA ends when the Provincial Health Officer provides notice that the emergency has passed (s. 59(1)).

A person who, among other things, fails to provide information, fails to take or provide preventive measures, fails to comply with an order of a health officer, fails to take emergency preventive measures, or fails to make a report in an emergency, commits an offence under the PHA (s. 99(1)). A person who commits an offence under s. 99(1) faces a fine not exceeding $25,000, up to six months’ imprisonment, or both (s. 108(1)(a)). Offenders may also be required to pay compensation (s. 107(1)(c)) or perform community service (s. 107(1)(d)).

Limits on emergency powers under the EPA and the PHA

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

Judicial review

A declaration of a state of emergency, and any order made under the EPA or the PHA, may be challenged in court. Broadly speaking, there would be two potential bases for judicial review of an emergency declaration or order made under either Act: (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 EPA and the PHA in their present forms, the B.C. legislature delegated considerable powers to Cabinet, particular ministers, and the Provincial Health Officer, to be exercised in exigent circumstances. Courts have a responsibility to oversee how these state actors 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, the applicable minister, or the Provincial Health Officer) has made a decision that exceeded the scope of the decision maker’s statutory grant of power (here, the EPA or the PHA).

Under the EPA, the legislature limited Cabinet and the Minister’s powers under the Act in two ways:

First, the legislature defined the sorts of exigent circumstances in which Cabinet or the Minister can declare a state of emergency. An “emergency” is defined as “a present or imminent event” that is “caused by accident, fire, explosion, technical failure or the forces of nature,” and that “require[s] prompt coordination of action or special regulation of persons or property to protect the health, safety or welfare of a person or to limit damage to property” (s. 1(1)).

Second, the legislature also limited the Minister’s powers under the EPA by requiring that the Minister consider any acts or procedures ordered under the EPA to be “necessary to prevent, respond to or alleviate the effects of an emergency or disaster” (s. 10(1)).

Similarly, under the PHA, the legislature limited the government’s powers to respond to a province-wide situation by defining the circumstances in which emergency powers may be exercised. No one can exercise emergency powers under the PHA to respond to a province-wide situation unless the Provincial Health Officer provides notice that she reasonably believes that at least two of the following criteria exist: (a) the event could have a “serious impact on public health”; (b) the event is “unusual or unexpected”; (c) a “significant risk of the spread of an infectious agent or a hazardous agent” exists; and/or (d) “significant risks of travel or trade restrictions” exist (s. 52(2)).

An emergency declaration, order, or regulation under the EPA or the PHA could be challenged on the basis of an alleged inconsistency with the requirements of either Act. The British Columbia Supreme Court could, in theory, quash an emergency declaration or order made under the EPA or the PHA because:

  • Cabinet or the Minister erroneously concluded that the criteria for declaring an “emergency” were satisfied under the EPA;
  • the Minister exceeded the limits on its power under s. 10(1) of the EPA, by:
    • making an order that does not fit into, or is not consistent with, the powers specified in s. 10(1) of the EPA; or
    • not believing that an order was “necessary to prevent, respond to or alleviate the effects of an emergency or disaster”; or
  • a person exercised emergency powers under the PHA in response to a province-wide situation without the requisite notice from the Provincial Health Officer under s. 52(2) of the Act.

In practice, the court would be highly unlikely to quash an emergency declaration or order under the EPA, or an order of the Provincial Health Officer under the PHA, 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 acts and procedures to respond to that emergency – to Cabinet, the respective Ministers, and the Provincial Health Officer, not to the courts.

For this reason, in exercising their powers under the EPA and the PHA, Cabinet, the Ministers, and the Provincial Health Officer 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 EPA or the PHA, unless it were established that the government’s interpretation of the legislation, its assessment of the situation, or its actions taken were so off the mark as to be “unreasonable” as a matter of administrative law. Only then could a court intervene.

Constitutional review

The Canadian Charter of Rights and Freedoms applies to (and constrains) British Columbia’s response to an emergency under the EPA and the PHA. For example, orders made by Cabinet or the Minister under the EPA could be challenged in court as inconsistent with the Charter as follows:

  • an order that “control[s] or prohibit[s] travel to or from any area of British Columbia” under s. 10(1)(f) of the EPA 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 “require[s] [a] person to render assistance of a type that the person is qualified to provide” under s. 10(1)(e) of the EPA 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; and
  • an order that “authorize[s] the entry into any building or on any land, without warrant” under s. 10(1)(i) of the EPA could limit “the right to be secure against unreasonable search or seizure” under s. 8 of the Charter.

If an order made under the EPA or the PHA (or a provision of either Act) 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 the Minister’s assessment of the costs and benefits of its emergency response would likely receive considerable deference.

Only the legislature can invoke the “notwithstanding clause” in s. 33 of the Charter. If an order under the EPA or the PHA 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 EPA, the PHA, or an order made under either Act, could be challenged as exceeding the B.C. 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” (s. 91(10)); and “Quarantine” (s. 91(11)). Additionally, the courts have recognized that Ottawa has exclusive jurisdiction over “the field of aviation”, including “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 that 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 EPA or the PHA 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 decision maker’s authority under the EPA or the PHA, or as ultra vires (beyond the jurisdiction of) the province.

Conclusion

Now that British Columbia has declared a state of emergency under the EPA and a public health emergency under the PHA in response to the COVID-19 pandemic, the B.C. government has sweeping statutory powers at its disposal. 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 British Columbia’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 (EPA, ss. 19 and 20). More immediately, however, you should consider whether your business may be impacted by the kinds of orders that the B.C. government is empowered to make under the EPA and the PHA, such as: imposing travel restrictions, mandating closures, establishing emergency and quarantine facilities, and procuring, fixing prices for or rationing food, clothing, fuel, equipment, medical supplies or other essential supplies.

As the global response to COVID-19 continues to evolve, the B.C. government may impose any or 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.

Authors