COVID-19: Can they do that? Part IV: Alberta’s Public Health Act and Emergency Management 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 fourth update, we consider Alberta’s Public Health Act and its Emergency Management 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

  • In response to the COVID-19 pandemic, the Province of Alberta has announced a state of public health emergency under the Public Health Act (the “PHA”). The declaration enables the Alberta government to take measures intended to protect public health. To date, among other measures, the provincial government has prohibited mass gatherings, attendance at recreation and entertainment facilities, and the operation of restaurants above 50% capacity.
  • The Alberta government has not yet declared a provincial state of emergency under the Emergency Management Act (the “EMA”). Should it do so, the provincial government would have access to sweeping powers to impose further restrictions and regulations, including in relation to travel, price controls, mandatory closures, and the acquisition of property necessary to alleviate the effects of an emergency.

What “public health emergency” means

On March 17, 2020, Alberta’s provincial Cabinet declared a provincial public health emergency pursuant to s. 52.1 of the PHA.

Section 52.1(1) of the PHA provides that, “on the advice of the Chief Medical Officer”, the provincial Cabinet “may make an order declaring a state of public health emergency relating to all or any part of Alberta”. To do so, the Cabinet must be satisfied that: (a) “a public health emergency exists or may exist”; and (b) “prompt co-ordination of action or special regulation of persons or property is required in order to protect the public health”.

The power to declare a public health emergency was first incorporated into the PHA in 2002. Since then, a “public health emergency” has been defined to include “an occurrence or threat” of an illness, a health condition, or an epidemic or pandemic disease “that poses a significant risk to the public health” (s. 1(hh.1)).

Under the PHA, an order declaring a public health emergency lapses after 30 days, or after 90 days in the case of “pandemic influenza” (s. 52.8(1)(a)). The provincial legislature may pass a resolution extending the declaration, however (s. 52.8(1)).

What Cabinet can do now

Once it has declared a public health emergency under the PHA, Cabinet may order:

  • the closure of any public place (s. 38(1)(a));
  • the postponement of an election for up to 3 months (s. 38(1)(b)); and
  • the immunization of persons who are not then immunized against the disease (s. 38(1)(c)).

For the purposes of “preventing, combating or alleviating the effects of the public health emergency and protecting the public health”, the provincial government may:

  • acquire or use any real or personal property (s. 52.6(1)(a));
  • authorize or require any qualified person to render aid of a type the person is qualified to provide (s. 52.6(1)(b));
  • authorize the conscription of persons needed to meet an emergency (s. 52.6(1)(c));
  • authorize the entry into any building or on any land, without warrant, by any person (s. 52.6(1)(d)); and
  • provide for the distribution of essential health and medical supplies and provide, maintain and co-ordinate the delivery of health services (s. 52.6(1)(e)).

Notably, the PHA allows for compensation for anyone whose personal property is damaged or destroyed as a result of the exercise of any government powers during the public health emergency (s. 52.7 (1)).

Further, the medical officer of health (defined to include the Chief Medical Officer (s. 1(bb))), may take whatever steps considered necessary to supress the disease in those already infected, protect those not already exposed, break the chain of transmission, prevent spread and remove the source of infection – in addition to whatever other steps are necessary to lessen the impact of the public health emergency (ss. 29(2) and 29(2.1)).

Once it declared a public health emergency, Alberta’s provincial government took swift steps to impose specific “aggressive public health measures”. To date, these include:

  • limiting mass gatherings, including worship gatherings and weddings, to no more than 50 attendees (excluding grocery stores, shopping centres, health care facilities and other essential services);
  • prohibiting attendance at public recreational facilities and private entertainment facilities (including gyms, pools, areas, galleries and museums, children’s play centres, community centres, racing centres, libraries and casinos);
  • limiting restaurants, cafés, coffee shops, food courts and other food-serving facilities to 50% capacity to a maximum of 50 people (while still permitting take-out, delivery and drive-thru service);
  • prohibiting attendance at buffet-style restaurants (excluding not-for-profit community kitchens, religious kitchens and food services at work camps); and
  • prohibiting attendance at bars and nightclubs.

Further, ski hills have been “strongly encouraged” to close, and all passenger ropeways (like gondolas and chairlifts) have been closed until further notice under the Safety Code Act.

What could come next: the Emergency Management Act

A state of public health emergency is different than a provincial state of emergency. If the government declared a provincial state of emergency, the Cabinet would immediately be vested with powers under the EMA that are far more sweeping and wide-ranging than the powers currently available to it under the PHA.

Alberta has not yet declared a provincial state of emergency. Other provinces – British Columbia, Ontario and Saskatchewan so far – have done so. Alberta’s provincial government may follow suit. Here’s what will happen if it does.

Alberta’s emergency legislation – first the Public Safety Disaster Services Act, then the Disaster Services Act, and now the EMA – has long empowered Cabinet to declare a state of emergency when it is satisfied that an emergency exists or may exist. However, the provincial government has only ever taken this step twice: during the 2013 Calgary flood, and again during the 2016 Fort McMurray wildfire.

The provincial legislature amended the EMA through the Emergency Management Act, 2018. The 2018 amendments were informed in large part by the province’s experiences and steps taken during the 2013 and 2016 emergencies.

Unlike Ontario’s Emergency Management and Civil Protection Act (the “EMCPA”), which empowers the Premier to act personally during an emergency, Alberta’s EMA makes no specific reference to enhanced powers for the Premier. Instead, like the federal Emergencies Act, the EMA only empowers the Cabinet to act collectively.

Once Cabinet declares a state of emergency pursuant to s. 18 of the EMA, Cabinet may make regulations in order to, among other things:

  • “acquire or utilize any real or personal property considered necessary to prevent, combat or alleviate the effects of an emergency or disaster” (s. 19(1)(c));
  • “authorize or require any qualified person to render aid of a type the person is qualified to provide” (s. 19(1)(d));
  • “control or prohibit travel to or from any area of Alberta” (s. 19(1)(e));
  • “provide for … the distribution of essential supplies and provide, maintain and co-ordinate emergency medical, welfare and other essential services in any part of Alberta;” (s. 19(1)(f));
  • “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” (s. 19(1)(h));
  • “procure or fix prices for food, clothing, fuel, equipment, medical supplies, or other essential supplies and the use of any property, services, resources or equipment within any part of Alberta for the duration of the state of emergency;” (s. 19(1)(j)); and
  • “authorize the conscription of persons needed to meet an emergency” (s. 19(1)(k)).

Significant penalties are associated with non-compliance with the EMA. A person that contravenes the EMA or interferes or obstructs any person in carrying out powers or duties under the EMA may be imprisoned for up to one year, fined up to $10,000, or both (s. 17).

Limits on the government’s emergency powers

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

Parliamentary oversight

Both the PHA and the EMA impose time limits on the emergency declarations that they permit. Where an emergency under either act is not affirmatively removed, or extended by resolution of the Legislative Assembly, it will automatically lapse.

The legislature’s oversight role, under the Alberta legislation, is less significant than the Ontario legislature’s oversight role under that province’s EMCPA or Parliament’s oversight role under the federal Emergencies Act. Federally, 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. In Ontario, the legislature may disallow the Cabinet’s emergency declaration.

Neither the PHA nor the EMA explicitly grant the legislature the power to disallow a declaration of a public health emergency or a declaration of a provincial state of emergency. Further, while the legislature can continue emergencies (PHA at s. 52.8(1); EMA at s. 18(4)), the legislature’s role in reviewing emergency orders is extremely limited. The limited oversight and role carved out for the legislature by the PHA and the EMA suggests that the provincial Cabinet can effectively declare and terminate emergency measures with little input from the Legislative Assembly.

Judicial review

An emergency declaration, whether under the PHA or the EMA, and any orders made by Cabinet pursuant to such a declaration, 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 PHA or the EMA: (1) inconsistency with the legislation itself, on administrative law grounds; or (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 PHA and the EMA, the Alberta legislature delegated considerable powers to the Cabinet, to be exercised in exigent circumstances. Courts have a responsibility to oversee how Cabinet exercises 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) has made a decision that exceeded the scope of the decision maker’s statutory grant of power (here, the PHA and the EMA). The legislature limited Cabinet’s powers under the acts in two primary ways:

First, as discussed above, the legislature defined (albeit in broad terms) the sorts of exigent circumstances that will qualify as a “public health emergency” under the PHA and an “emergency” under the EMA.

Second, the legislature limited Cabinet’s extraordinary powers to make and act upon orders under section 52.1 of the PHA and section 18 of the EMA by:

  • prescribing the Cabinet’s specific powers related to such orders; and
  • in the case of declarations of public health emergencies, requiring that Cabinet:
    • be “satisfied”, “on the advice of the Chief Medical Officer”, that a public health emergency “exists or may exist” and “prompt co‑ordination of action or special regulation of persons or property is required in order to protect the public health” (PHA at s. 52.1(1)); and
    • identify the nature of the public health emergency and the area of Alberta to which it relates (PHA at s. 52.3);
  • in the case of declarations of provincial states of emergency, requiring that Cabinet:
    • be “satisfied,” that an emergency “exists or may exist” (EMA at s. 18(1)); and
    • identify the nature of the emergency and the area of Alberta in which it exists, upon declaring a state of emergency (EMA at s. 18(2)).

A public health emergency declaration or a provincial state of emergency declaration could be challenged on the basis of an alleged inconsistency with the PHA or EMA on any of these grounds. In practice, however, a court would be highly unlikely to do so. This is because the legislature has clearly committed the question of whether a “public health emergency” or other “emergency” exists to Cabinet, not to the courts.

For this reason, in exercising its powers under the PHA or the EMA, Alberta’s Cabinet will enjoy a wide margin of deference. A judge would not second guess the government’s response to a bona fide public health or other emergency on the basis of an alleged inconsistency with either piece of provincial legislation, unless it were established that any 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 could a court intervene.

Constitutional review

The Charter will apply to (and constrain) the province’s response to an emergency under either the PHA or the EMA. For example, orders made by the provincial Cabinet under s. 19 of the EMA could be challenged in court as inconsistent with the Charter, as follows:

  • an order that restricts or prohibits individuals’ movements by controlling or prohibiting travel “to or from any area of Alberta” under s. 19(1)(e) of the EMA 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; and
  • an order that “authorizes the conscription of persons needed to meet an emergency” under section 19(1)(k) of the EMA could, depending on the circumstances, be said to 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.

As is the case with Ontario’s EMCPA, if an order made under the PHA or the EMA (or a provision of one of the statutes) 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 section 33 of the Charter. If an order under the PHA or the EMA 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 PHA or EMA, or an order made under either statute, could be challenged as exceeding the Alberta 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)) 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 PHA or the EMA 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 PHA or EMA, or as ultra vires (beyond the jurisdiction of) the province.

Conclusion

By declaring that the COVID-19 pandemic is a public health emergency, the Alberta government has enhanced powers to “prompt co-ordination of action or special regulation of persons or property … in order to protect the public health” (s. 52(1)(b)). The provincial government has already taken steps under the PHA declaration to limit gatherings, prohibit attendance at private and public recreational centres and disallow the operation of restaurants at more than 50% capacity. The declaration of public health emergency under the PHA may last up to 30 days, and the provincial legislature may extend it further thereafter.

Should Cabinet ultimately invoke a state of emergency under the EMA, it will have still broader powers to impose restrictions and implement aggressive measures deemed necessary to address the crisis. Such measures could include intra-provincial travel restrictions, mandated closures, the establishment of emergency facilities, price controls, or the procurement of necessary goods, services and resources.

Alberta’s provincial government must use its statutory powers in a manner consistent with the legislation and the Constitution. While the courts have a constitutional responsibility to oversee Alberta’s use of its authority, they will approach the government’s decisions with considerable deference.

As the circumstances surrounding COVID-19 continue to shift rapidly, the Alberta government may impose further measures pursuant to the public health emergency or even broader restrictions under a provincial state of emergency. For businesses and individuals that stand to be affected by such measures, it is prudent to make decisive and careful preparations at this time.

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