COVID-19: Can they do that? Part V: Roundup: Manitoba, New Brunswick, Newfoundland and Labrador, the NWT, Nova Scotia, Nunavut, P.E.I., Saskatchewan and Yukon

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:

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.

The information in this update is current as of March 22, 2020.

Manitoba

  • On March 20, 2020, Manitoba declared a state of emergency in reaction to the COVID-19 pandemic. Pursuant to section 10(1) of the province’s Emergency Measures Act, the provincial government can make such a declaration in the event of a major emergency or disaster. The act defines an “emergency” as “a present or imminent situation or condition that requires prompt action to prevent or limit … loss of life, or harm or damage to the safety, health or welfare of people…” (s.1).

 

  • The state of emergency empowers Manitoba’s provincial government with expansive abilities to: “issue an order to any party to do everything necessary to prevent or limit loss of life” including by: (i) requiring qualified persons to render aid; (ii) controlling intra-provincial travel; (iii) authorizing entry into any building or land without warrant; (iv) regulating the distribution of essential goods, services and resources and (v) expending “such sums as are necessary to pay expenses caused by the emergency or disaster” (s. 12(1)).

 

  • Pursuant to the declaration, Manitoba has already limited public gatherings to 50 people (including at places of worship) and closed all wellness centres. Grocery stores, shopping centres, pharmacies, public transport facilities and gas stations are to ensure the separation of one to two meters between patrons. Hospitality premises must limit their capacity to 50 persons or 50% of their total capacity, whichever is lesser.

 

  • Unless it is terminated earlier by the provincial government, Manitoba’s declaration will remain valid for 30 days. Cabinet may, however, extend the state of emergency for further periods of up to 30 days each (s. 10(4)).

 

New Brunswick

  • On March 19, 2020, the government of New Brunswick declared a provincial state of emergency pursuant to section 12 of the New Brunswick Emergency Measures Act (the “NBEMA”). The NBEMA allows for such a declaration where an emergency (defined as a present or imminent event in respect of which the government believes “prompt coordination of action or regulation of persons or property must be undertaken to protect … the health, safety or welfare of the civil population”) exists or may exist.
  • Having declared a provincial state of emergency, the Government of New Brunswick may now do “everything necessary for the protection of … the health or safety of persons therein”, including, among other things: (i) prohibiting travel; (ii) maintaining and coordinating emergency medical, social and other essential services; (iii) fixing prices; and (iv) ordering the assistance of persons to carry out measures related to the emergency, with or without remuneration (s. 12).
  • Following the declaration, New Brunswick’s Minister of Public Safety made a series of orders, implementing specific closures, including of food and beverage serving businesses (beyond take-out services), all public-facing business and recreation operations (with exceptions, including for grocery stores and pharmacies) and non-emergency health care services providers. Further, the rights of landlords to require tenants to vacate for non-payment of rent under the Residential Tenancies Act have been suspended until May 31, 2020.
  • New Brunswick’s state of emergency will lapse after 14 days but may be renewed by the Minister of Public Safety with the approval of Cabinet (s. 17).

Newfoundland and Labrador

  • On March 18, 2020, the government of Newfoundland and Labrador declared a public health state of emergency pursuant to the Public Health and Promotion Act (the “PHPA”). The PHPA defines a public health emergency as “an occurrence or imminent threat that presents a serious risk to the health of the population”, specifically including a “communicable disease”.
  • Section 27 of the PHPA allows for the declaration of a public health state of emergency where the government is satisfied, on the advice of the Chief Medical Officer of Health, that a public health emergency cannot be sufficiently mitigated or remedied without the implementation of “special measures”.
  • The measures available to Newfoundland and Labrador’s provincial government under the PHPA are broader in scope than those permitted by equivalent provincial public health statutes elsewhere in Canada. The PHPA empowers the province’s Chief Medical Officer, during a public health emergency, to, among other things: (i) authorize qualified persons to provide aid; (ii) enter into an agreement for services with the federal government or the government of another province; (iii) order closures of schools or places of assembly; and (iv) take any other measure reasonably believed necessary for the protection of the health of the population.
  • The state of public health emergency differs from a provincial state of emergency under Newfoundland’s Emergency Services Act. If the provincial government proceeds to make such a declaration then, pursuant to s. 31 of the PHPA, the provincial state of emergency will take precedence over the current public health emergency. A state of emergency will permit the provincial government to take further measures, including in relation to the control of transportation by land or water, entering private property, and the acquisition and allocation goods and series relevant to the emergency.
  • Newfoundland’s declaration of public health emergency will expire after 14 days unless it is extended by the government on the advice of the Chief Medical Officer of Health. The PHPA permits such an extension where it is required to protect the health of the population.

Nova Scotia

  • On March 22, 2020, Nova Scotia’s Minister of Municipal Affairs and Housing declared a state of emergency pursuant to section 12(1) of its Emergency Management Act (the “NSEMA”).

 

  • The declaration was made following consultation with the provincial Executive Council (Cabinet), per section 12(1) of the NSEMA, and upon satisfaction that an emergency exists or may exist in the province. Per section 2(b) of the NSEMA, an “emergency” means a “present or imminent event in respect of which the [provincial government] … believes prompt co-ordination of action or regulation of persons or property must be undertaken to protect property or the health, safety or welfare of people in [Nova Scotia]”.

 

  • As a result of the declaration, Nova Scotia’s provincial government may now, “do everything necessary for the … the health or safety of persons therein,” including by: (i) controlling intra-provincial travel; (ii) regulating the distribution of essential goods and services; (iii) ordering the assistance of persons needed to carry out the health and safety measures available under the NSEMA; (iv) authorizing entry on any property without warrant; and (v) making emergency payments (s. 14).

 

  • Under the declaration, Nova Scotia has already stated that gatherings must be limited to no more than five persons per location and no entry may occur into the province for social reasons. Further, the province has directed the closure of all provincial and municipal parks and beaches, explicitly stating that failure to comply could result in summary conviction with fines between $500 to $10,000 for individuals and up to $100,000 for a corporation, per incident (s. 23).

 

  • Unless the declaration is renewed or terminated earlier by Cabinet, the state of emergency will remain in effect for 14 days (s. 19).

 

Northwest Territories

  • On March 18, 2020, the Northwest Territories declared a public health emergency in response to the COVID-19 pandemic. The declaration was made by the Northwest Territories’ Minister of Health, pursuant to s. 32 of the N.W.T. Public Health Act (the “NWTPHA”) on the recommendation of the territorial Chief Public Health Officer.
  • Public health emergencies may be declared in the Northwest Territories where such a declaration is “required to protect the public health” (s. 32(1)(b)).
  • The declaration grants the territorial Chief Public Health Officer sweeping abilities, including the power to: (i) make recommendations to the Minister of Health that temporary permits be issued, pursuant to the Medical Profession Act, to individuals registered as medical practitioners in other provinces or territories; (ii) prohibit intra-territorial travel; (iii) enter into agreements with agencies of the federal government or the government of another province for health-related services; and (iv) acquire or use real or personal property, both private and public (s. 33).
  • If the territory takes the additional step of declaring a territorial state of emergency under s. 14 of its Emergency Management Act (the “NWTEMA”), the territorial government will be empowered to implement wide-ranging measures including to, among other things, control travel, authorize the conscription of persons needed to respond to the emergency and “do any other act or thing to mitigate, respond to and recover from the effects of the emergency” (NWTEMA, s. 17).
  • The Northwest Territories’ declaration of public health emergency is set to lapse after 14 days unless an order is made by the territorial government for its extension or earlier termination (NWTPHA, s. 32(2)(b)).

Nunavut

  • On March 18, 2020, Nunavut issued a declaration of a public health emergency under its Public Health Act (the “NUPHA”). Under the NUPHA, such a declaration can be made by the territorial Minister of Health where a public health emergency exists that “cannot be sufficiently mitigated or remedied without the implementation of special measures [that are otherwise available in the NUPHA]” (s. 40).
  • Declaring a public health emergency empowers Nunavut’s Chief Public Health Officer to exercise significant powers “for the purpose of protecting the public health and preventing, remedying or mitigating the effects of the public health emergency”. These include the power to: (i) enter into agreements for services with agencies of the federal government or the government of another province or territory; (ii) restrict inter- and intra-territorial travel; and (iii) take “any other measure” reasonably believed to be “necessary for the protection of public health during the public health emergency” (s. 41). However, the NUPHA states that the territorial Chief Public Health Officer may not inspect, enter or authorize entry into a dwelling without a warrant or consent of the occupant, unless something in the dwelling is a “serious and immediate risk to public health” (s. 41(4)).
  • Nunavut has not yet declared a territorial state of emergency under its Emergency Measures Act (the “NUEMA”). The NUEMA sets out a series of factors that must be met before a state of emergency can declared. First, the situation must require “immediate action to prevent or reduce serious harm to persons…”. Second, the resources ordinarily available to the territory’s government must not be sufficient to be relied on without risk of delay, without impairing the ability to prevent or respond to another emergency or to address the situation effectively. Third, the declaration must have the effect of preventing or reducing serious harm to persons (NUEMA, s. 12). Declaring a territorial state of emergency will give the territorial government the power to take any measure considered necessary, including in relation to the construction of works to mitigate the effects of an emergency, price fixing and conscription (NUEMA, s. 13).
  • The public health emergency will continue in Nunavut for 14 days. However, the Minister of Health may order an extension, on the recommendation of the Chief Public Health Officer, where such an extension is “required to protect the public health.” (NUPHA, 40(2)(b)).

Prince Edward Island

  • On March 16, 2020, the provincial government of Prince Edward Island announced a state of public health emergency pursuant to s. 49 of the province’s Public Health Act (the “PEIPHA”). The PEIPHA defines a public health emergency as an “occurrence or imminent threat of a health hazard or disease that presents a significant risk to the public health” (s. 1(v)).
  • The declaration of a state of public health emergency specifically empowers Prince Edward Island’s provincial government, on the advice of the province’s Chief Public Health Officer, to: (i) issue directions for the purposes of managing the threat, including in respect of identifying and managing cases, controlling infection, managing healthcare facilities and supplies, and administering immunizations; (ii) order an owner to deliver up possession of premises for use as a temporary assessment, treatment, isolation or quarantine facility; (iii) order a public place to be closed; and (iv) impose restrictions on public gatherings.
  • Prince Edward Island has not yet declared a provincial state of emergency under its Emergency Measures Act (the “PEIEMA”). If it did, the provincial state of emergency would take precedence over the current state of public health emergency (PEIPHA, s. 52). Where a provincial state of emergency is declared, the provincial government is empowered to, among other things, restrict intra-provincial travel, procure essential supplies and the use of property, services, or equipment, and order the assistance of persons to carry out measures related to the emergency, with or without remuneration (PEIEMA, s. 11).
  • Unless terminated or continued by the provincial Cabinet, Prince Edward Island’s current state of public health emergency will lapse on the expiry of 30 days from its declaration.

Saskatchewan

  • On March 18, 2020, the Saskatchewan government announced a provincial state of emergency. The declaration grants the provincial government broad abilities under The Emergency Planning Act (the “EPA”) to address the COVID-19 pandemic.
  • Saskatchewan’s EPA permits the declaration of a provincial state of emergency where the provincial Cabinet is satisfied that an emergency (defined to include a calamity caused by forces of nature (s. 2(b)(i)(D))) exists or may exist in all or any part of Saskatchewan.
  • During a provincial state of emergency, the provincial Cabinet is vested with the ability to impose sweeping restrictions and prohibitions. These include the power to restrict intra-provincial travel, to impose price controls, to conscript persons needed to meet an emergency; and to acquire property necessary to alleviate the effects of an emergency. The EPA also provides the Cabinet with a “catch-all” power to “do all acts and take all proceedings that are reasonably necessary to meet the emergency”.
  • The provincial government has already imposed prohibitions related to mass gatherings, attendance at recreation and entertainment facilities (including gyms and casinos) and the operation of restaurants above 50% capacity (up to a maximum of 50 persons). The government has also advised that further restrictions in respect of children attending daycares should be anticipated, and that licensed restaurants and taverns will be permitted to sell alcohol as an off-sale under the province’s liquor and gaming regulations.
  • Cabinet may terminate a state of emergency when, in its opinion, the emergency no longer exists, or when it is in the public interest to terminate (s. 19(1)). An emergency declaration will lapse after 14 days unless it is renewed by Cabinet before its termination (s. 17(1)(4)).

Yukon

  • On March 18, 2020, Yukon’s Chief Medical Officer of Health declared a public health emergency, pursuant to s. 4.3 of the territory’s Public Health and Safety Act (the “PHSA”). This declaration enabled public health measures to prevent the spread of COVID-19, including the closure of libraries, recreational facilities and hospitals to all visitors.
  • Public health emergencies may be declared under the PHSA where the territorial Chief Medical Officer of Health is of the opinion, “based on reasonable grounds”, that a situation exists that constitutes a public health emergency (which includes a “communicable disease emergency … that presents a significant threat to public health in Yukon or the imminent potential for such a threat” (s. 1)).
  • Declaring a public health emergency immediately grants the Chief Medical Officer of Health significant powers (s. 4.4), including to: (i) require any person to provide information, including personal information, to “enable the officer to perform their duties and functions” under the PHSA (s. 4.5(1)); (ii) deal with medication, supplies and equipment (s. 4.6); (iii) control the entrance or exit of persons to and from a specific area (s. 3(2)(a)); (iv) detain for surveillance persons who have been exposed to a communicable disease (s. 3(2)(b)); and (v) order the cleansing, purifying or disinfection of persons or articles exposed to a communicable disease (s. 3(2)(c)).
  • The PHSA plainly states at s. 4.7 that a public health emergency does not constitute an emergency within the meaning of Yukon’s Civil Emergency Measures Act (the “CEMA”). Emergencies under CEMA include a “peacetime disaster”. Upon declaring a territorial state of emergency under the CEMA, Yukon’s government may put into operation “any civil emergency plan” (CEMA, s. 8(1)) and may “do all things considered advisable for the purpose of dealing with the emergency”. This includes acts for the protection of persons, controlling the use of roads and requisitioning goods and supplies (CEMA, 9(1)).
  • Yukon’s public health emergency may be concluded by the territorial Cabinet following a recommendation by the Minister of Health (PHSA, s. 4.3(7)). The PHSA does not provide for the automatic lapsing of the public health emergency.

We will revise this update as other provinces declare emergencies under applicable provincial legislation.

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.

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