The Minister of Public Safety and Solicitor General declared a state of provincial emergency on March 18, 2020 in response to the COVID-19 pandemic. A number of local governments are now considering whether they should also declare a state of local emergency. The Minister of Municipal Affairs and Housing and the Minister of Public Safety and Solicitor General recently sent a letter to municipal mayors and regional district chairs, concerning the exercise of local government powers under the Emergency Program Act, in light of the declaration of a state of provincial emergency. The position of the Province is that the provincial declaration does not prevent a local authority from declaring a state of local emergency in response to the COVID-19 pandemic, if it thinks it advisable to do so.
Local governments that are considering declaring a state of local emergency should consider the following:
- Under the Emergency Program Act, it is not necessary to declare a state of local emergency in order to activate the local authority’s emergency plan.
- A state of local emergency is in effect for a period of up to 7 days. A state of local emergency may be extended for periods of up to 7 days each, with the approval of the Minister or the Lieutenant Governor in Council.
- While a state of local emergency is in effect, the local authority may exercise the powers of the Minister under sub-sections 10(1)(d) to (l) of the Emergency Program Act. This includes the power to:
- acquire or use land or personal property
- authorize or require persons to render assistance
- control or prohibit travel
- provide for the restoration of essential facilities, distribution of essential supplies, and to provide, maintain and coordinate emergency medical, welfare and other essential services
- cause the evacuation of persons and livestock from an area that may be affected by an emergency
- authorize the entry into any building or onto any land
- construct works necessary or appropriate to prevent, respond to or alleviate the effects of a disaster
- procure, fix prices for, and ration food, clothing, and so on.
- Careful consideration should be given to whether the exercise of any of the powers under section 10(1)(d) to (l) of the Emergency Program Act is advisable or would be helpful given the circumstances the local authority is dealing with, and whether it is the Province or the local authority that is in a better position to exercise those powers in response to the emergency.
- The Emergency Program Act does not include a particularly robust enforcement mechanism for local authorities. Section 27 provides that it is an offence to contravene the Act or to interfere with or obstruct any person in the exercise of their powers or duties, but to secure a conviction under the Act would require police investigation and the exercise of prosecutorial discretion by Provincial Crown Counsel.
- Given that the COVID-10 pandemic is likely to persist for some time, some consideration could be given to using local government regulatory powers to address local issues.
- As the COVID-19 emergency affects every part of the Province, consultation with Provincial officials is advisable to ensure that the measures a local authority proposes to take are not inconsistent with Provincial measures that are in effect or that are being considered. The Minister does have the authority to override a local authority’s exercise of its powers under the Emergency Program Act.
- While the Emergency Program Act does provide immunity from liability for persons acting under the authority of the legislation, subject to exceptions for gross negligence and bad faith, nonetheless, and in the event of any doubt or uncertainty about whether a particular action or measure is authorized, local authorities and their officials should seek legal advice, especially if the action or measure proposed to be taken could result in loss or damage to third parties.
- Local governments should also seek legal advice before implementing emergency measures that could be inconsistent with statutory requirements under the Local Government Act and Community Charter. For example, at this point the Province has not issued a Regulation or order that would allow a Board or Council to avoid the statutory requirement for holding their meetings in public.
It should also be noted that the Community Charter and Local Government Act both include additional provisions for the exercise of emergency powers by a Council and Board. However, in contrast to the Vancouver Charter, the emergency powers provisions under the Community Charter and Local Government Act only apply to emergencies that are outside of the scope of the Emergency Program Act. A local government considering the exercise of these powers in the present circumstances should seek legal advice