The BC Legislature is now back in session-the provincial state of emergency related to the COVID-19 pandemic was declared on March 18, 2020 and the Legislature's spring session ended on March 23, 2020.

As we reported in a previous article on June 24, 2020, in response to the pandemic, the BC government took significant practical, economic, and legal measures to protect public health, the economy, ensure the proper functioning of the legal system and preserve legal rights.

The legal measures included thirty (by our count) Ministerial Orders issued by the Minister of Public Safety and Solicitor General under the Emergency Program Act, deemed necessary "to prevent, respond to or alleviate the effects of any emergency or disaster".

A question that nagged inquiring minds was the constitutionality of such actions. This nagged the B.C. Ombudsperson too, who issued a report considering two Ministerial Orders that "exemplified" these concerns (Ministerial Order M098, Limitation Periods (COVID-19) Order No. 2, and Ministerial Order M139, Local Government Meetings and Bylaw Process (COVID-19) Order No. 2). The Ombudsperson concluded that:

"The Emergency Program Act does not expressly authorize the minister to suspend, amend or override otherwise valid statutes or regulations when acting under s.10(1). Do the opening words of s.10(1) implicitly authorize that? In my opinion, the words "acts" and "procedures," read on their own and in the context of the Emergency Program Act as a whole, do not have the dramatic effect of transferring the legislature's law-making power to the minister, let alone allowing the minister to then transfer those powers to others."

In anticipation of such concerns, on the same day as the Ombudsperson's report (June 22, 2020), the BC government introduced Bill 19 - COVID-19 Related Measures Act, which proposed to enact into law the Ministerial Orders made under the Emergency Program Act, and to expressly transfer the legislature's law-making power to the Lieutenant Governor in Council (i.e. the executive branch - the Premier and Ministers) during declared states of emergency. The transfer is limited to the following:

"10.1(1) After a declaration of a state of emergency is made under section 9 (1), and for the duration of the state of emergency, the Lieutenant Governor in Council may, subject to this section, make regulations as follows to prevent, respond to or alleviate the effects of an emergency or a disaster: for the limited purposes of:

  1. making an exception to an enactment;
  2. establishing limits on the application of an enactment;
  3. establishing powers, duties, functions or obligations that apply in place of or in addition to an enactment;
  4. establishing conditions in relation to anything done or established under paragraphs (a) to (c).

(2) Without limiting subsection (1) and subject to this section, the Lieutenant Governor in Council may make regulations as follows to prevent, respond to or alleviate the effects of an emergency or a disaster:

  1. suspending the application of a provision that establishes a limitation period or a period of time within which a proceeding or process must be commenced or a step must be taken in a proceeding or process;
  2. setting out a replacement limitation period or period of time for one suspended under paragraph (a) of this subsection;
  3. authorizing an issuer of a permit, licence or other authorization to modify the conditions of a permit, licence or other authorization or to add or remove conditions of a permit, licence or other authorization;
  4. authorizing a person, tribunal or other body that has a statutory power of decision to waive, suspend or extend a mandatory time period relating to the exercise of that power."

The Bill also allows for the extension of those orders beyond the end of the provincial state of emergency, empowering the Lieutenant Governor to extend them for up to one year after the Act is brought into force.

The Bill was modified between second and third reading, to add a requirement for the Minister responsible for the Act (currently the Minister of Public Safety and Solicitor General) to report any measures taken under the Emergency Program Act to the Speaker of the Legislature within 5 days, and for the Speaker to have the measures laid before the Legislature as soon as possible.

On July 8, 2020, the slightly modified Bill was given Royal Assent, and on July 10, 2020, it was brought into force (and tweaked) by Order in Council 391.

On balance.

In the author's view, there is a legitimate need for emergency governmental powers in an emergency, especially a fast-moving, far reaching one like the COVID-19 pandemic. Without impugning any actions taken or the genuine motivations of the government to alleviate suffering and hardship, one may nonetheless question whether the COVID-19 Related Measures Act strikes the appropriate balance.

Previously, emergencies could be thought of in timeframes of days, weeks, and perhaps months. Considering that the Legislature only meets sporadically, allowing a Minister or the Lieutenant Governor in Council extraordinary powers makes a good deal of sense.

But now, with COVID-19 and the ever-present threat of a resurgence (both of this first wave and the anticipated second wave), we're in for a long haul - many more months, and perhaps a year or more. However, the Legislature is in session and proving the fact that it is able to function nonetheless. One can also reasonably expect that the Legislature's processes will be adapted to satisfy democratic norms, as well as public health requirements (if the Courts can do it.).

So, is the transfer of power necessary or appropriate when considering the prospect of long term crises like COVID-19 (even if the state of emergency is being extended a mere two weeks at a time)? Are the powers appropriate if the world is moving into extended periods of emergency arising from the broad and multifaceted effects of climate change (forest fires, flooding, drought, food shortages, mass migration etc.)?

Students of history and literature may also start breathing more shallowly when considering the many examples of emergencies being used to justify undemocratic alterations of the delicate balance of power between the executive and legislative (and sometimes even judicial) branches of government.

It remains to be seen whether the constitutionality of the COVID-19 Related Measures Act will be challenged in court, or whether action in the political arena will spur a re-evaluation of this critical issue. In the meantime, we must be vigilant, not just to maintain physical distancing amongst ourselves that is essential to our personal health, but to maintain the functional distancing between the executive and the legislative branches of government that is essential to our democracy's health.

Two final notes.

First, in our earlier article, we noted that the first draft of the Bill excluded M179 - Commercial Tenancy (COVID-19) Order, which prohibits evictions of commercial tenants if the landlord has not entered into a rent reduction agreement with their tenant that precludes evictions, and for that reason the landlord is ineligible for the Canada Emergency Commercial Assistance program. M179 has now been added to the list of Measures that are now law (see OIC 391).

Second, the COVID-19 Related Measures Act and OIC 391 create a somewhat difficult-to-follow matrix of orders, each with different effective and expiry dates. We've created the following chart to make sense of it (current to July 13, 2020):

Schedule 1
Item Column 1 Column 2 Column 3 Column 4 Column 5 Column 6
Ministerial Order Title Ministerial Order Number When Added to Schedule Come into force date Expiry Date Summary of Order
1 Electronic Attendance at Strata Property Meetings (COVID-19) Order M114/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows the attendance at council and general meetings to be conducted by telephone or other electronic method.
2 Electronic Attendance at Corporate Meetings (COVID-19) Order M116/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows meetings of directors or shareholders or members, as the case may be, of entities incorporated under the Business Corporations Act, the Societies Act and Cooperative Association Act to be held electronically or by telephone.
3 Electronic Attendance at Credit Union Meetings (COVID-19) Order M138/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows participation in a credit union meeting by electronic means.
4 Local Government Meetings and Bylaw Process (COVID-19) Order No. 2 M139/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) June 16, 2020 (OIC 391) Allows participation in local government council meetings by electronic means in certain circumstances.
5 Electronic Attendance at Statutory Meetings (COVID-19) Order M167/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows any meeting that is authorized or otherwise provided for in an enactment and not already the subject to a prior Order, to be conducted by telephone or other electronic means. (see Ministerial Orders M114 (Strata Property Meetings), M116 (Corporate Meetings), M138 (Credit Union Meetings), M139 (Local Government Meetings and Bylaw Processes).
6 Correctional Centre Measures (COVID-19) Order M193/2020 Original List in the Act (July 8, 2020) March 18, 2020 (Act s. 3: on date the state of emergency declared, see Ministerial Order M73) 90 days after the state of emergency expires (Act s. 3(5)(a)) States that a correctional centre may designate classes of inmates based on their date of admission, create induction units, and order inmates confined to their induction units.
Schedule 2
Item Column 1 Column 2 Column 3 Column 4 Column 5 Column 6
Ministerial Order Title Ministerial Order Number When Added to Schedule Come into force date Expiry Date
1 Bylaw Enforcement Officer (COVID-19) Order M082/2020 Original List in the Act (July 8, 2020) March 26, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Authorizes certain bylaw enforcement officers described in the Community Charter and the Vancouver Charter to provide assistance in enforcing public health orders, including providing warnings, information and advice, informing a public health officer regarding contraventions, but not detaining individuals or issuing orders, fines or penalties.
2 Local Authorities and Essential Goods and Supplies (COVID-19) Order M084/2020 Original List in the Act (July 8, 2020) March 26, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Requires local authorities to implement local emergency plans, and set aside prior declarations of a local state of emergency. Requires any subsequent declarations to only be made with the approval of the Minister. Also requires various emergency response measures to be taken at the request of the Minister and coordination amongst local authorities. Prohibits secondary selling of essential goods and supplies. Requires BC Ferries to prioritize vehicles carrying essential goods and supplies, and residents of the sailing destination. Requires coordination amongst suppliers, distributors and retailers to deliver essential goods, as directed by the Minister.
3 Limitation Periods (COVID-19) Order M086/2020 Original List in the Act (July 8, 2020) March 26, 2020 (Date Order issued: Act s. 3) April 14, 2020 (OIC 391) Replaced By the Limitation Periods (COVID-19) Order No. 2. See Item 7 below.
4 Residential Tenancy (COVID-19) Order M089/2020 Original List in the Act (July 8, 2020) March 30, 2020 (Date Order issued: Act s. 3) June 23, 2020 (OIC 391) Replaced By the Residential Tenancy (COVID-19) Order No. 2. See Item 23 below.
5 Provincial Compliance Officer (COVID-19) Order M093/2020 Original List in the Act (July 8, 2020) March 31, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Authorizes provincial compliance officers (persons authorized to conduct inspections under the Cannabis Control and Licencing Act, Liquor Control and Licencing Act and Gaming Control Act) to provide assistance in enforcing public health orders, including providing warnings, information and advice, informing a public health officer regarding contraventions, but not detaining individuals or issuing orders, fines or penalties.
6 Protection Against Liability (COVID-19) Order M094/2020 Original List in the Act April 2, 2020 (Date Order issued: Act s. 3) April 21, 2020 (OIC 391) Replaced By Protection Against Liability (COVID-19) Order No. 2 See Item 10 below.
7 Limitation Periods (COVID-19) Order No. 2 M098/2020 Original List in the Act (July 8, 2020) April 8, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Suspends every mandatory limitation period and any other mandatory time period within which a civil or family action, proceeding, claim or appeal must be commenced in Provincial Court, Supreme Court or Court of Appeal, excluding the Builders Lien Act and Division 5 of Part 5 of the Strata Property Act (dealing with builders liens). This replaces M86 – Limitation Periods (COVID-19) Order.
8 Health Care Labour Adjustment (COVID-19) Order M105/2020 Original List in the Act (July 8, 2020) April 10, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows health care employers to limit the movement of staff between health care facilities in accordance with the same labour adjustment terms.
9 Prohibition on Unconscionable Prices for Essential Goods and Supplies (COVID-19) Order M115/2020 Original List in the Act (July 8, 2020) April 17, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Prohibits the selling of "essential goods and supplies" in a retail environment at an "unconscionable price".
10 Protection Against Liability (COVID-19) Order No. 2 M120/2020 Original List in the Act (July 8, 2020) April 22, 2020 (Date Order issued: Act s. 3) 45 days after state of emergency expires or is cancelled (Act: s. 3(5)(b)) States that a person conducting an essential service who was or reasonably believed they were operating in accordance with all applicable emergency and public health guidance, will not be liable for damages from an individual being or likely being exposed to COVID-19, provided the person was not grossly negligent. This replaces M94 – Protection Against Liability (COVID-19) Order.
11 Supreme Court Civil and Family Applications (COVID-19) Order M121/2020 Original List in the Act (July 8, 2020) April 22, 2020 (Date Order issued: Act s. 3) 45 days after state of emergency expires or is cancelled (Act: s. 3(5)(b)) Allows the Chief Justice and Associate Chief Justice to make an order that a specific rule under the Supreme Court Civil Rules or the Supreme Court Family Rules does not apply in certain circumstances, and make any others for the hearing or determination of certain applications.
12 Encampment Health and Safety (COVID-19) Order M128/2020 Original List in the Act (July 8, 2020) April 28, 2020 (Date Order issued: Act s. 3) May 7, 2020 (OIC 391) Replaced by the Encampment Health and Safety (COVID-19) Order No. 2. See Item 14 below.
13 Employment and Assistance (COVID-19) Order M133/2020 Original List in the Act (July 8, 2020) April 28, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows certain information required under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act to be provided by "verbal means or verbal confirmation".
14 Encampment Health and Safety (COVID-19) Order No. 2 M150/2020 Original List in the Act (July 8, 2020) May 8, 2020 (Date Order issued: Act s. 3) Date State of Emergency expires or is cancelled. (OIC 391) Orders the evacuation of the Oppenheimer Park, Topaz Park and Pandora Avenue Corridor homeless encampments.
15 Encampment Health and Safety (COVID-19) Vancouver Enforcement Order M152/2020 Original List in the Act (July 8, 2020) May 8, 2020 (Date Order issued: Act s. 3) Date State of Emergency expires or is cancelled. (OIC 391) Providing further authorization for the enforcement of Encampment Health and Safety (COVID-19) Order No. 2 at the Oppenheimer Park encampment.
16 Local Government Finance (COVID-19) Order M159/2020 Original List in the Act (July 8, 2020) April 30, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows local governments to borrow from reserve funds in calendar 2020.
17 Electronic Witnessing of Enduring Powers of Attorney and Representation Agreements (COVID-19) Order M162/2020 Original List in the Act (July 8, 2020) May 19, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows for the creation of enduring powers of attorney and representation agreements through electronic means.
18 Encampment Health and Safety (COVID-19) Victoria Enforcement Order M166/2020 Original List in the Act (July 8, 2020) May 20, 2020 (Date Order issued: Act s. 3) Date State of Emergency expires or is cancelled. (OIC 391) Providing further authorization for the enforcement of Encampment Health and Safety (COVID-19) Order No. 2 at the Topaz Park and the Pandora Avenue Corridor encampments.
19 Electronic Attendance at UBCM Convention (COVID-19) Order M168/2020 Original List in the Act (July 8, 2020) May 20, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Allows participation by telephone or other electronic means in meetings contemplated in the Union of British Columbia Municipalities Act or a regulation, article, memorandum, bylaw, rule or other enactment made under that Act.
20 Protection Against Liability for Sports (COVID-19) Order M183/2020 Original List in the Act (July 8, 2020) June 10, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) States that "sport organizations" are not liable for damages resulting from an individual being or likely being infected with or exposed to COVID-19 during an "organized sport activity", provided they are complying with "emergency and public health guidance".
21 Local Government Meetings and Bylaw Process (COVID-19) Order No. 3 M192/2020 Original List in the Act (July 8, 2020) June 17, 2020 (Date Order issued: Act s. 3) 90 days after the state of emergency expires (Act s. 3(5)(a)) Concerns local government council meetings. Requires local governments to use their best efforts to allow members of the public to participate in public meetings in accordance with public health requirements, but if unable to do so, to pass a resolution stating so and indicating the "means by which the council or body is ensuring openness, transparency and accountability in respect of the meeting".
22 Commercial Tenancy (COVID 19) Order M179/2020 July 10, 2020 (OIC 391) June 29, 2020 (Date Order issued (Act. 3) September 1, 2020 (OIC 391) This order applies to any lease between a tenant and a landlord who is not eligible for assistance under the Canada Emergency Commercial Rent Assistance program in respect of that tenant for the sole reason that the landlord has not, as required to be eligible for the program, entered into a rent reduction agreement with the tenant that includes a moratorium on eviction. The Order restricts the landlord from pursuing landlord remedies against a tenant who fails to pay rent. Order expires the date after the last date for which the Canada Emergency Commercial Rent Assistance program provides assistance.
23 Residential Tenancy (COVID-19) Order No. 2 M195/2020 July 10, 2020 (OIC 391) June 24, 2020 (Date Order issued, Act s. 3) 45 days after state of emergency expires or is cancelled (OIC 391) Applies to tenancies governed by the Residential Tenancy Act and the Manufactured Home Park Tenancy Act. Restricts the circumstances in which a landlord may give a tenant notice to end a tenancy, and in which an order of possession and a writ of possession may be granted. Also restricts rent increases, allows restrictions to common areas, the landlord's rights to enter a rental unit, and delivery or service of documentation. This replaces M89 - Residential Tenancy (COVID-19) Order.
24 [EPA Instrument Title] [EPA Instrument No.] July 10, 2020 (OIC 391) July 8, 2021 (1 year after the COVID-19 Related Measures Act is brought into force (OIC 391) [TBD]
25 COVID-19 (Societies Act) Regulation OIC 393/2020 July 10, 2020 (OIC 391) July 10, 2020 (Date Order issued, Act s. 3) To be determined by regulation (Act: s. 3(c)) – but not stated in OIC 393 Orders that the March 31 deadline set out in section 71 (3) of the Societies Act is suspended and replaced with a deadline of November 1. This section allows societies who cannot hold an AGM in 2020, to apply to the Registrar to hold the 2020 meeting in 2021. The Registrar may allow the 2020 meeting to occur in 2021 provided it is earlier than Nov 1, 2021.

Originally published by Clark Wilson, July 2020

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