BC Uses Emergency Powers to Secure Supply Chain, Defines “Essential Services”
(Updated April 20, 2020)
On Thursday, March 26, 2020, B.C. Minister of Public Safety and Solicitor General, Mike Farnworth, announced a series of unprecedented ministerial orders “to secure critical supply chains and safeguard the most vulnerable” in B.C. during the COVID-19 pandemic.
On March 18, 2020, the Minister declared a “state of emergency” in B.C. under the Emergency Program Act (the “EPA”), enabling the province to exercise sweeping emergency powers to, among other things, prohibit travel to and from any area of the province, conscript persons to render assistance that they are qualified to provide, and procure, fix the prices of, or ration essential supplies such as food, clothing, fuel, equipment and medical supplies. Our full summary of B.C.’s emergency powers can be found here.
Pursuant to its powers under the EPA, the Minister made the following orders, effective immediately:
- Provincial Supply Chain Coordination Unit: The Minister announced the creation of a Provincial Supply Chain Coordination Unit tasked with coordinating the distribution of goods and services throughout the province. According to the Minister, the province, through Emergency Management BC, will take a more active role in coordinating the movement of essential goods and services by land, air, marine and rail. Transport of essential goods, services or personnel by air will be managed by a Coordinated Provincial Air Service. If required, the province will take control of warehouses and other facilities for gathering supplies and resources.
- Bylaws restricting delivery of goods repealed: According to the Order, despite any bylaw restricting or limiting when goods, food or supplies may be delivered to a retailer, a person may at any time deliver goods, food and other supplies to a retailer.
- Obligation to report inventory: At the request of the Minister, all retailers, suppliers, businesses and other organizations must report to Emergency Management BC on their inventory of essential goods and supplies and any other supplies required by front line health care workers, first responders and other prioritized essential workers.
- Prohibition of re-sale of essential goods and supplies: The “secondary selling” of essential goods and supplies, including, among others, food, medical supplies, personal protective equipment, and cleaning supplies, is prohibited. Secondary selling is defined in the Order as the purchase or acquisition of an essential good or supply, and subsequent offering of that essential good or supply for resale in person, on any business premises, by phone or fax, on a website or an internet-based application, or by any other means.
- Limit on sale of essential goods and supplies: If directed by the Minister, a retailer must not sell more than the specified number of items of a specified good to a person in a single transaction.
- Coordination of delivery of essential goods and supplies: All suppliers, distributors and retailers in BC, the Retail Council of Canada (BC), the Canadian Trucking Association of BC and the United Truckers Association must, if directed by the Minister, take coordinated measures to ensure the effective delivery of essential goods and supplies throughout the province. The Minister may prioritize the delivery of certain essential goods and supplies, including food, fuel, medicine, etc.
- Hotels and lodging operators must provide accommodation: If directed by the minister, a hotel operator or commercial lodging operator must provide accommodation services for the purpose of the self-isolation of individuals, supporting essential workers, or any other purpose identified by Emergency Management BC.
- Priority ferry boarding for vehicles carrying essential goods or supplies: BC Ferries, and all other ferry operators within B.C., must ensure priority loading on ferries for vehicles carrying essential goods and supplies.
- Local states of emergency and orders set aside: The Minister set aside all declarations of local states of emergency and orders made by a local authority, except the City of Vancouver, in order to coordinate and centralize the Province’s response to COVID-19. Going forward, all local authorities, including City of Vancouver, must seek the approval of the Minister prior to making an order or passing a bylaw in relation to the response to COVID-19.
On April 17, 2020, the Minister issued a further order under the EPA prohibiting the sale of “essential goods and supplies” (including food, water, gasoline, medical supplies and sanitation goods) at an “unconscionable price”. The order defines “unconscionable price” as a price that grossly exceeds the price at which similar essential goods and supplies are available in similar transactions to similar consumers.
On April 19, 2020, the Minister announced that police and other enforcement officers are now empowered to actively enforce orders under the EPA, and may issue $2,000 violation tickets for infractions of those orders. Enforcement will be focused on price gouging and reselling of essential goods and supplies. However, police and enforcement officers may also ticket those who exceed quantity limits on the sale of certain items, and hotels and lodging operators that do not comply with the requirement to provide accommodation at the request of the Province.
The above orders will remain in effect as long as the declaration of a state of emergency, and any extension of that declaration, remains in effect in B.C.
BC defines “essential services” during COVID-19 pandemic
In a backgrounder released on March 26, 2020, the Province has also set out its definition for “essential services” during the COVID-19 pandemic: “those daily services essential to preserving life, health, public safety and basic societal functioning.” This definition specifically applies in the context of B.C.’s COVID-19 response measures, and is separate from the definition of “essential services” under the B.C. Labour Relations Code.
The following are considered categories of “essential services” during the COVID-19 pandemic:
- Health and health services;
- Law enforcement, public safety, first responders, emergency response personnel;
- Vulnerable population service providers;
- Critical infrastructure service providers;
- Food and agriculture service providers;
- Transportation, infrastructure and manufacturing;
- Communications, information sharing and information technology; and
- Non-health essential service providers.
The Minister clarified that a business that is not defined as an “essential service,” but has not been expressly ordered to close, may remain open if it is able to comply with the orders and recommendations of the Provincial Health Officer, including the order banning gatherings of 50 people or more, and the requirement to maintain physical distancing.
For more information about the content of this update please contact one of the authors, 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.