So, what is happening with Ontario’s declaration of emergency for COVID-19?
It’s ended, but the containment rules and directives continue.
The declaration of emergency was made initially under the Emergency Management and Civil Protection Act (“EMCPA”). Recently, the provincial declaration of emergency was extended to July 24, 2020, while existing emergency orders were extended to July 29, 2020. However, recognizing that there will likely be a continued need to manage the public health risks and effects of COVID-19 well beyond the declared emergency, on July 21, 2020, the Ontario government passed Bill 195, now known as the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Act”).
End of Declared Emergency
The Act provides that the COVID-19 declared emergency is terminated once it comes into force unless the emergency has been terminated beforehand. The Act came into force on July 24, 2020, which coincides with the termination of the state of emergency.
Continuation and Amendment of Emergency Orders
The Act also provides that emergency orders made under section 7.0.2 or 7.1 of the EMCPA that are in force on the date the Act came into force will cease to be orders under the EMCPA but will be continued as valid and effective orders under the new legislation. The orders are continued for an initial period of 30 days, but the Act allows for the extension by the Lieutenant Governor in Council for further periods of no more than 30 days at a time.
Bill 195, as it was passed, does not allow for the creation of new emergency orders under the Act. However, the continued orders may be amended by the Lieutenant Governor in Council, but only if the amendment requires persons to act in compliance with the advice, recommendations or instruction of a public health official and the amendment relates to one of the following subject matters:
closing or regulating any place, whether public or private, including any business, office, school, hospital or other establishment or institution;
providing for rules or practices related to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify or implement redeployment plans or rules or practices that relate to the workplace or the management of the workplace, including credentialing processes in a health care facility; or
prohibiting or regulating gatherings and organized public events.
Bill 195, as it was passed, also provides that some orders cannot be amended, including, for example: Order 210/20 (Management of Long-Term Care Homes in Outbreak), Order 240/20 (Management of Retirement Homes in Outbreak) and Order 241/20 (Special Rules Re Temporary Pandemic Pay).
The Act limits the authority to extend or amend emergency orders continued under it to a period of one (1) year, subject to further extension by the legislature. It provides for oversight of that authority through regular, mandated reporting wherein any extension of an emergency order under the Act would have to be justified. Additionally, it addresses enforcement and compliance through the same type of provisions on offences and penalties as those already set out under the EMCPA.
It is important to note that despite the provincial declaration of emergency coming to an end, it will nonetheless remain possible for an individual head of the council of a municipality to declare that an emergency exists in any part of their municipality (or to continue such a declaration) and to therefore exercise the powers granted to municipalities in such circumstances by the EMCPA. It also continues to remain possible for Ontario’s Chief Medical Officer of Health or for local medical officers of health to exercise the powers granted to them by the Health Protection and Promotion Act.