As of the end of the day on June 30, 2021, the COVID-19 State of Emergency, as previously declared under the Emergency Program Act (British Columbia), was cancelled. The Province is now in a period of transition under the COVID-19 Related Measures Act, SBC 2020, c. 8. The COVID-19 Related Measures Act was adopted to enact as statute law various Ministerial Orders that had been made under the Emergency Program Act (“COVID-19 Orders”) in response to the COVID-19 pandemic.
Summaries of the COVID-19 Orders that directly affected the exercise of local government powers can be found in our earlier website posts, as follows:
- “New Local Government Meetings and Bylaw Process Order (MO192)”, July 19, 2020;
- “New Local Government Finance (COVID-19) Order”, May 20, 2020; and
- “Ministerial Orders under the Emergency Program Act”, March 26, 2020.
Ministerial Order M159/2020 (the Local Government Finance (Covid-19) Order) has now been repealed. However, the Municipal Affairs Statutes Amendment Act, 2021, discussed below, contains provisions respecting reserve fund borrowing and revenue anticipation borrowing that was authorized under the now repealed Ministerial Order, and also contains transitional provisions for tax sales that were deferred as a result of the pandemic.
Divisions 4 and 6 of Ministerial Order M192/2020 (the Local Government Meetings and Bylaw Process (COVID-19) Order No. 3) have also been repealed. Division 4 of the Order authorized municipalities to adopt certain specified categories of bylaws on the same day as third reading. Division 6 of that Order allowed improvement districts to defer their annual general meeting for the year 2020, as well the preparation of their financial statements. The provisions of the Local Government Meetings and Bylaw Process (COVID-19) Order No. 3 that authorize virtual meetings and public hearings remain in place for the time being, and will presumably be repealed when the provisions of the Municipal Affairs Statutes Amendment Act, 2021 that authorize the conduct of all council and council committee meetings, and the holding of public hearings, by means of electronic and other communications facilities, come into force. See below for a discussion of those provisions.
Ministerial Order M082/2020 (the Bylaw Enforcement Officer (COVID-19) Order) remains in force but will be repealed effective December 31, 2021.
Ministerial Order M084/2020 (the Local Authorities and Essential Good Supplies (COVID-19) Order) remains in place for the time being, except for section 10 which required BC Ferries to take steps to ensure priority loading for vehicles carrying essential goods and supplies, and residents of ferry sailing destinations. The remainder of that Ministerial Order will be repealed effective December 31, 2021.
Takeaways for local governments at this point in time are:
- Given that section 5 of the Local Authorities and Essential Good Supplies (COVID-19) Order remains in place, local governments still may not declare a local state of emergency in response to the COVID-19 pandemic without the Minister’s approval.
- The authority for virtual meetings and public hearings under Local Government Meetings and Bylaw Process (COVID-19) Order No. 3 remains in place for now, but local governments should begin the process of reviewing and amending their procedure bylaws in anticipation of the amendments to the meeting provisions of the Community Charter coming into force (see discussion below).
- As long as public health orders related to the pandemic remain in place, and until the Bylaw Enforcement Officer (COVID-19) is repealed, bylaw enforcement officers may be expected to continue to provide assistance to provincial health officers in the enforcement of those orders.
Municipal Affairs Statutes Amendment Act, 2021
On June 17, 2021, the Municipal Affairs Statutes Amendment Act, 2021 received Royal Assent. Certain of its provisions came into force on July 11, 2021, while others will come into force by regulation.
Electronic Meetings and Public Hearings
The Municipal Affairs Statutes Amendment Act, 2021 amends the Community Charter so as to allow regular and special council meetings, and council committee meetings, to be held by means of electronic or other communication facilities. The requirements for electronic meetings are essentially the same as the current statutory requirements for special council meetings that are conducted by electronic means, including:
- the meeting must be conducted in accordance with the procedure bylaw;
- the procedure bylaw must provide for advance public notice of the way in which the electronic meeting is to be conducted, and notice of a place where the public may attend to hear, or watch and hear, the proceedings that are open to the public;
- the facilities used to conduct the meeting must enable the participants to hear, or watch and hear, each other;
- the facilities used to conduct the meeting must enable the members of the public to hear, or watch and hear, the portion of the meeting that is open to the public, including at the “specified place”;
- a designated municipal officer must be in attendance at the specified place.
The amended legislation will continue to authorize electronic attendance by a council member who is unable to attend a council or committee meeting, where authorized by the procedure bylaw.
We expect that similar amendments to the Regional District Electronic Meetings Regulation are being considered, so that regional districts will have the same authority to conduct regular board and board committee meetings electronically.
Additionally, under the new amendments to the Local Government Act, public hearings that are required under section 464 (official community plan bylaws, and zoning bylaws) may be conducted by means of electronic and other communications facilities, provided that the facilities allow the participants to hear, or watch and hear, each other, and provided the notice of public hearing indicates the way in which the hearing is to be conducted.
The Municipal Affairs Statutes Amendment Act, 2021 also contains a transitional provision under which notice of a meeting or hearing that is given under the Local Government Meetings and Bylaw Process (COVID-19) Order No. 3 before the new meeting/public hearing provisions come into force is deemed to have been provided in accordance with the new statutory requirements.
These provisions will come into force by regulation.
Local Government Finance
The Municipal Affairs Statutes Amendment Act, 2021 makes amendments to the Municipalities Enabling and Validating Act (No. 4) that re-enact and continue the requirements for repayment of reserve fund/revenue anticipation borrowing that was authorized under the Local Government Finance (Covid-19) Order. The amendments also provide that if a municipal tax sale was deferred in 2020 under the Local Government Finance (Covid-19) Order, the annual tax sale for 2020 is deferred to September 27, 2021, and also provide that, for certainty, any taxes that were delinquent remain delinquent for 2021, with interest.
Other amendments of note are the addition of sections 191.1 and 191.2 to the Community Charter. Section 191.1 allows the Minister to make regulations relating to revenue anticipation borrowing for municipalities, regional districts and greater boards, where the Minister considers that special circumstances exist that result in, or are anticipated to result in, a loss of revenue by or an expense for the municipality, regional district, or greater board. Section 191.2 allows the Minister to make regulations relating to reserve fund borrowing for municipalities, regional districts, greater boards, and improvement districts, where the Minister considers that special circumstances exist that result in, or are anticipated to result in, an operational shortfall.
Although “special circumstances” is not defined, they would no doubt include any future circumstances that had a similar economic and financial impact to the COVID-19 pandemic.
For further information about these amendments, please visit our Youtube Channel and watch the presentation titled BC Local Government Legislative Updates – July 2021 by our associate, Heidi Boudreau.