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). (more…)

Local Government Emergency Powers in Response to the COVID-19 Pandemic

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. (more…)

Legal Implications for Homelessness During COVID-19

The circumstances surrounding the COVID-19 pandemic may give rise to new challenges pertaining to homeless populations within the jurisdictions of local governments.  Although decisions of British Columbia Supreme Court over the last two years have clarified and confirmed that responsibility for homelessness lies with the Province and not with local governments, it is recognized for practical purposes that municipalities and regional districts are most often the level of government most directly impacted by homelessness.  While the law which has arisen from the decisions of the Courts has general application across the Province, the circumstances and experience of each local government are different, as will be the response.  We have been deeply involved in these issues for the past number of years and are in a position to provide you with efficient, summary advice relating to this issue.  For more information contact Jeff Locke at jlocke@sms.bc.ca


COVID-19 and Bylaw Enforcement

Notwithstanding the gravity of the crisis which British Columbia and the rest of the world is facing, local governments may find themselves dealing with businesses that choose to ignore the clear directions provided by Provincial public health officials.   While it is expected that Provincial authorities will take the lead on enforcing public health orders, local governments also have a number of enforcement tools at their disposal and may be better positioned to act quickly to protect their communities. For example, on March 19th the City of Delta revoked the business licence of a “hot yoga” studio which was making false claims, including that the heat of the yoga studio would kill the COVID-19 virus. In addition to revoking a business licence, a more direct and consequential remedy may be available through an injunction sought from the British Columbia Supreme Court.  As of March 18th the normal operations of the Court have been suspended save for urgent matters, but it is expected that urgent matters pertaining to the current crisis will be among the limited matters which the Courts will hear.  For more information contact Jeff Locke (jlocke@sms.bc.ca) or Bob Macquisten (rmacquisten@sms.bc.ca).


Declaration of Public Health Emergency

The Provincial Health Officer declared a public health emergency on March 17, 2020.  The Declaration is authorized under Part 5 – Emergency Powers of the Public Health Act.

Local governments should be aware that during an emergency Part 5 of the Public Health Act applies despite any provision of the Public Health Act or any other enactment to the extent that there is any inconsistency or conflict with that provision or another enactment.  This includes in relation to the collection, use or disclosure of personal information, the Freedom of Information and Protection of Privacy Act and the Personal Information Protection Act.  Further, this also applies to a provision that would impose a specific duty, limit or procedural requirement in respect of a specific person or thing.

Role of Local Government under the Public Health Act

Local Governments should be aware that under section 83 of the Public Health Act a local government is required to take certain steps when it becomes aware of a health hazard in its jurisdiction including reporting a health hazard to a health officer or taking an action that the local government has authority to take under the Public Health Act or another enactment to respond to the health hazard.  Further, they must provide health officers with information that health officers require and consider advice or information provided to them by a health officer. (more…)

Duty to Report

The Reporting Information Affecting Public Health Regulation, B.C. Reg. 167/2018 requires at section 4 that any person in charge of an institution or workplace who has been advised by a Medical Health Officer that a person who is or has been present at the institution or workplace is an infected person must, if requested by the Medical Health Officer, report the contact information, if known, of each person who may have been exposed to the infected person and make a report to the Medical Health Officer in the form and manner required by the Medical Health Officer.

The novel coronavirus is a prescribed infectious agent in the Schedule to the Regulation.

Electronic Meetings and COVID 19

As we learn more about the potential impacts of COVID 19, you may be thinking ahead and considering what would happen if a number of elected officials were unable to attend a local government council or board meeting because of illness or self-isolation. Many local governments will have included in their Procedure Bylaws provisions in relation to electronic meetings. Some procedure bylaws will specify that where you are allowing participants to attend electronically there must be a quorum of elected officials physically present at the meeting. (more…)

Provincial Health Officer Issues Order Prohibiting Gatherings of More than 50 People

Due to the risk of an outbreak of COVID 19, the Provincial Health Officer has issued an order under the Public Health Act.  The order expressly applies to municipalities and regional districts, as well as other persons and organizations. Persons and organizations subject to the order are prohibited from permitting the gathering of more than 50 people at a place of which they are the owner, occupier, or operator, or for which they are otherwise responsible. The order is effective until May 30, 2020, unless revised, cancelled, or extended.

Local governments will need to consider closing or curtailing the operation of public facilities they operate, in order to comply with the order. The impact of the order on the conduct of council and board meetings, as well as public hearings, will also need to be carefully considered.


COVID-19 and Contractual Responsibilities

COVID-19 is creating multiple and unprecedented issues for British Columbians, including local governments.  The number, type, and severity of issues will likely increase in the coming days and weeks.  One potential issue that may arise is the effect of a contractor or a local government being unable to perform their obligations under a contract, either due to the illness itself or governmental efforts to prevent or slow the transmission of the virus. (more…)