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Safety - Emergency Management and Civil Protection Act (EMCPA). Simcoe Muskoka District Health Unit v. ONA
In Simcoe Muskoka District Health Unit v. ONA (Div Court, 2023) the Divisional Court reviews the EMCPA (Emergency Management and Civil Protection Act) and orders:Legislative Regime
[15] The Emergency Management and Civil Protection Act provides broadly for the development of emergency management programs and for responses to emergencies. Section 7.0.1 provides for the declaration of an emergency and responses. The focus of this application is s. 7.0.2, which provides for emergency powers and orders, as follows, in relevant part:7.0.2 (1) The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.
(2) During a declared emergency, the Lieutenant Governor in Council may make orders that the Lieutenant Governor in Council believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property, if in the opinion of the Lieutenant Governor in Council it is reasonable to believe that,
(a) the harm or damage will be alleviated by an order; and
(b) making an order is a reasonable alternative to other measures that might be taken to address the emergency.
(3) Orders made under this section are subject to the following limitations:
1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.
2. An order shall only apply to the areas of the Province where it is necessary.
3. Subject to section 7.0.8, an order shall be effective only for as long as is necessary.
(4) In accordance with subsection (2) and subject to the limitations in subsection (3), the Lieutenant Governor in Council may make orders in respect of the following:
1. Implementing any emergency plans formulated under section 3, 6, 8 or 8.1.
2. Regulating or prohibiting travel or movement to, from or within any specified area.
3. Evacuating individuals and animals and removing personal property from any specified area and making arrangements for the adequate care and protection of individuals and property.
4. Establishing facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals.
5. Closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution.
6. To prevent, respond to or alleviate the effects of the emergency, constructing works, restoring necessary facilities and appropriating, using, destroying, removing or disposing of property.
7. Collecting, transporting, storing, processing and disposing of any type of waste.
8. Authorizing facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency.
9. Using any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution.
10. Procuring necessary goods, services and resources.
11. Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources.
12. Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.
13. Subject to subsection (7), requiring that any person collect, use or disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.
14. Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.
(5) An order under paragraph 12 of subsection (4) may provide for terms and conditions of service for persons providing and receiving services under that paragraph, including the payment of compensation to the person providing services.
(6) The employment of a person providing services under an order made under paragraph 12 of subsection (4) shall not be terminated because the person is providing those services. [Emphasis added.] ...
[16] As set out above, in s. 7.0.2(5)(6), among other subsections, the Act does provide for orders that have an impact on the terms and conditions of service providers, including employees.
[17] The Act further provides for agreements about payments in a. 13(1) and limits recourse in regard to property rights in s. 13.1:13 (1) The Solicitor General, with the approval of the Lieutenant Governor in Council, may make agreements with the Crown in right of Canada in respect of the payment by Canada to Ontario of any part of the cost to Ontario and to municipalities of the development and implementation of emergency management programs and the formulation and implementation of emergency plans.
(2) The Solicitor General, with the approval of the Lieutenant Governor in Council, may make agreements with the Crown in right of Canada and with the Crown in right of any other province for the provision of any personnel, service, equipment or material during an emergency.
(3) The council of a municipality may make an agreement with the council of any other municipality or with any person for the provision of any personnel, service, equipment or material during an emergency.
13.1 (1) Nothing done under this Act or under an order made under subsection 7.0.2 (4) constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law and there is no compensation for the loss, including a taking, of any real or personal property except in accordance with subsection (3).
(2) The Lieutenant Governor in Council may by order authorize the payment of the cost of providing any assistance that arises under this Act or as the result of an emergency out of funds appropriated by the Assembly.
(3) If, as the result of making an order under subsection 7.0.2 (4), a person suffers the loss, including a taking, of any real or personal property, the Lieutenant Governor in Council may by order authorize the reasonable compensation of the person for the loss in accordance with such guidelines as may be approved by the Lieutenant Governor in Council.
(4) Without limiting the generality of subsection (2), the Lieutenant Governor in Council may by order authorize the payment of the costs incurred by a municipality in respect of an order made under this Act out of funds appropriated by the Assembly.
[Emphasis added.] [18] The Order was made under the above Act.[1] As set out below, s. 2 of the Order directed and authorized the Health Unit to take, “with respect to work deployment and staffing”, any reasonably necessary measure to respond to, prevent and alleviate the outbreak of COVID-19. The Order further provided that the Health Unit could exercise its power “despite any other statue, regulation, order, policy, arrangement or agreement, including a collective agreement”. The Order that was O. Reg 116/20, now repealed, provided as follows in relevant part:1. This Order applies to every board of health within the meaning of the Health Protection and Promotion Act.
2. Boards of health shall and are authorized to take, with respect to work deployment and staffing, any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus (COVID-19) (the “Virus”).
3. Without limiting the generality of section 2, and despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, boards of health shall and are authorized to do the following:
1. Identify staffing priorities and develop, modify and implement redeployment plans, including the following:
i. Redeploying staff within different locations in (or between) facilities of the board of health.
ii. Changing the assignment of work, including assigning non-bargaining unit employees or contractors to perform bargaining unit work.
iii. Changing the scheduling of work or shift assignments.
iv. Deferring or cancelling vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise.
v. Employing extra part-time or temporary staff or contractors, including for the purposes of performing bargaining unit work.
vi. Using volunteers to perform work, including to perform bargaining unit work.
vii. Providing appropriate training or education as needed to staff and volunteers to achieve the purposes of a redeployment plan.
2. Conduct any skills and experience inventories of staff to identify possible alternative roles in priority areas.
3. Require and collect information from staff, contractors or volunteers about their availability to provide services for the board of health.
4. Require and collect information from staff, contractors or volunteers about their likely or actual exposure to the Virus, or about any other health conditions that may affect their ability to provide services.
5. Cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the Virus or services that are not deemed to be critical by a board of health’s business continuity or pandemic plans.
6. Suspend, for the duration of this Order, any grievance process with respect to any matter referred to in this Order.
4. For greater certainty, a board of health may implement redeployment plans without complying with provisions of a collective agreement, including lay-off, seniority/service or bumping provisions. ...
[Emphasis added.]
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