Risk Management in Exercising Local Government Emergency Powers

While local governments grapple with taking the lead in their communities to best protect the health and safety of their populations they must be careful to ensure that there is a basis of statutory authority for the steps they are taking.  Failing to do so could otherwise potentially place elected officials or senior staff at risk for what has been described in law as the “Category B” element of the tort of misfeasance of office, which is “a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff.“ (Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263).

For instance, local government orders which have the effect of closing businesses or restricting travel could later give rise to a claim for economic loss. Local governments should be cautious so as to only exercise the authority they possess by virtue of authorizing statutes and regulations (and for which, in any questionable case, they have sought legal advice to confirm). Where it is practical for a local government to do so, consider allowing the Province to take the lead on orders and prohibitions.

Having said all of this, we know from history that the City of St. Louis took steps during the Spanish Flu pandemic which were then viewed as extreme and draconian, but which were later recognized as saving that city from the terrible fate suffered by Philadelphia and other cities which did not impose such restrictions.  Clearly any risk taken will need to be measured against the public health risks which local government measures are intended to address.