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Limits on emergency powers in British Columbia: Ombudsperson concludes that two COVID-19 orders were unlawful

The Ombudsperson of British Columbia recently concluded that two of the provincial government’s COVID-19 emergency orders were unlawful: they exceeded the Minister of Public Safety and Solicitor General’s statutory powers under the Emergency Program Act (the “EPA”).

The Ombudsperson’s conclusion has no legal effect, but serves to illustrate that exercises of ministerial powers must respect legislative limits on those powers, even in a crisis like COVID-19. We have written elsewhere about administrative law limits on governments’ emergency powers.

The Orders

The Ombudsperson assessed the lawfulness of two of the provincial government’s emergency orders (the “Orders”):

  • Ministerial Order M098 suspended mandatory limitation periods relating to court proceedings and allowed statutory decision makers to waive, suspend, or extend a mandatory time limit relating to their decision-making powers.
  • Ministerial Order M139— which was repealed and replaced with Ministerial Order M192 on June 17, 2020[1] — exempted local governments from statutory requirements relating to the conduct of meetings and public hearings and the passage of bylaws. For example, it allowed municipal councils to conduct meetings without allowing the public to attend, and it allowed public hearings to be conducted through electronic or other communication.

The Orders effectively suspended or amended the provisions of various statutes, including the Limitation Act, the Community Charter, and the Local Government Act.

Section 10(1) of the EPA empowers the Minister of Public Safety and Solicitor General (the “Minister”) to “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. The Minister purported to rely on this broad power to make the Orders. For more information about the EPA, see our previous post, here.

The Ombudsperson’s conclusions

The Orders were contrary to law

The Ombudsperson concluded that s. 10(1) of the EPA neither expressly nor implicitly authorized the Minister to suspend, amend, or override otherwise valid statutes or regulations. To the extent that the Orders purported to do so, they were contrary to law.

In reaching this conclusion, the Ombudsperson reasoned that the words chosen by the legislature place boundaries on the Minister’s power. Read in the context of the EPA as a whole, the words “acts” and “procedures” in the opening of s. 10(1), do not have the effect of transferring the legislature’s law-making power to the Minister or of allowing the Minister to transfer those powers to others.

According to the Ombudsperson, while the EPA allows the Minister to target the emergency’s causes and to take steps to alleviate its effects, these broad powers are fundamentally distinct from a power to suspend or amend laws of the province. That power is normally exercised by the legislature with open debate and public accountability. None of the enumerated “acts” and “procedures” listed in s. 10(1) are akin to the power to suspend or amend a statute. It would be unreasonable to conclude that the legislature intended to grant the Minister absolute discretion to suspend or amend provincial statutes during an emergency, even if he purports to do so in good faith and for the best of reasons: “A health emergency does not suspend the fundamental principle that every exercise of public authority, including authority exercised by a minister, must find its source in law.”

Moving forward, the Ombudsperson made two recommendations:

  1. The provincial government should introduce, for consideration by the legislature, legislation to validate any EPA orders purporting to suspend or amend a statute that have been made since the March 18, 2020 declaration of a provincial state of emergency; and
  2. The Minister should refrain from making further orders under s. 10(1) of the EPA that purport to suspend or amend provisions of B.C. statutes, or that delegate the power to do the same to statutory decision makers, unless the province enacts legislation to specifically authorize the Minister to make such orders.

The Orders did not reflect the principle of proportionality

The Ombudsperson also considered that, even if the Orders were not contrary to law, they did not sufficiently guard against the potential for arbitrary or inconsistent decision-making by sub-delegates. The Ombudsperson noted that the Minister did not impose any legally binding conditions on the use of sub-delegated powers to suspend, waive, or amend the statutory provisions affected by M098 and M139.

The Ombudsperson made two further recommendations:

  1. If the government introduces legislation to validate any EPA orders purporting to suspend or amend a statute that have been made since the March 18, 2020 declaration of a provincial state of emergency, the legislation should include provisions that impose appropriate conditions on sub-delegates’ exercise of powers.
  2. If the government introduces legislation to authorize the Minister to make further emergency orders that suspend or amend legislation, the legislation should also:
    1. require the Minister expressly to consider principles of necessity and proportionality; and
    2. require any sub-delegation of the authority (if permitted by the legislation at all) to be limited by appropriate conditions that reflect the context of the specific sub-delegation at issue.

The Minister lacks formal accountability and oversight

Finally, the Ombudsperson noted that the EPA has limited oversight and accountability mechanisms: a declaration of a state of emergency expires if not renewed after two weeks; orders made under s. 10(1) are effective only for the duration of the state of emergency; and details about a state of emergency, including its cancellation or suspension, must be made public.

The Ombudsperson recommended that principles of public and legislative reporting and oversight be integrated into emergency legislation to allow necessary debate about the appropriateness of emergency measures.

[1] M192 still exempted local governments from statutory requirements relating to the conduct of meetings and public hearings and the passage of bylaws, but limited the applicability of these exemptions and imposes, for example, justification requirements on the government for using the exemptions.