Emergency Powers in Response to COVID-19
Dan Sheppard outlines the emergency powers governments may use to respond to COVID-19
Each level of government has extraordinary powers that it may invoke in the case of an emergency. Often designed to deal with war and insurrection, these regimes have evolved to be responsive to a wide range of crises, including pandemics like COVID-19.
In March 2020, Dan Sheppard prepared a memo outlining some of the emergency powers that the provincial and federal governments could rely on to respond to the COVID-19 pandemic. Since then, Dan has regularly updated the memo to describe shut down orders and new emergency orders as they are issued. He also describes changes made to the orders.
This memo will continue to be updated and posted here as the situation evolves.
June10: This update reflects the introduction of Ontario’s “Roadmap to Reopening” framework, and includes the new rules that will be applicable for “Step 1” as of June 11, 2021. This update also adds in updated reference to arbitral case law interpreting the effect of emergency orders that permit the overriding of collective agreements.
June 2: This memo covers the legislature’s decisions to extend the state of emergency and renew the government’s power to maintain and amend emergency orders. It also covers the introduction of the new “Roadmap to Reopening” policy framework, as well as the expiry of a number of orders, including the provincial stay-at-home order.
April 29: This update covers 11 new emergency orders that have been issued over the last week. They relate to a variety of topics, including expanded rules for transferring patients involuntarily from hospitals to other care settings and loosening the prohibition against individuals working in multiple health care settings.
April 24: This update covers minor changes to the inter-provincial travel restrictions, as well as two new orders. The first permits independent health facilities to deploy their staff to hospitals. The second authorizes regulated health professionals, including those from other provinces, to engage in the practice of any health profession in an Ontario hospital under certain circumstances.
April 18: This update covers the rollback of some of the restrictions to the use of outdoor recreational amenities. These changes – the third set of rules that came into effect in just one day – were in response to public health experts expressions of dismay in the government restricting safe outdoor activities while doing nothing to stop the spread of the pandemic in indoor workplaces.
April 17: This update covers 13 new orders that were made since the previous update. This includes an extension of the state of emergency to May 5th, new ban on entering Ontario from Manitoba or Quebec, changes to rules on what businesses may operate, and restrictions on wedding sizes. It reviews rapid changes that have occurred over the previous 48 hours, including new police enforcement powers that were only in effect for 5 hours before being repealed. Despite the low rate of outdoor COVID transmission, outdoor recreational amenities may no longer be used. Despite the very high rate of COVID transmission in workplaces like factories and food processing plants there are no measures whatsoever included to support vulnerable workers from becoming infected.
April 15: This update covers two new emergency orders passed in response to the dangerous increase in ICU admissions. The first allows the redeployment of staff from Ontario Health and Local Health Integration Networks into hospitals notwithstanding collective agreement terms. The second permits the transfer of patients between hospitals without their consent.
April 8: This update reflects the third state of emergency in Ontario that was declared on April 7th. Changes include a new province-wide stay-at-home order, a renewed “ban” on residential evictions, and new restrictions in shutdown zone regions.
April 5: This update covers the government’s decision on April 3, 2021 to ignore its own science table’s advice to impose a stay-at-home order, and instead to move all health units into the lockdown zone set of rules without a requirement to stay at home. Changes to both lockdown zone and grey zone rules are also reviewed, related to day camps, car dealerships and access to golf courses and driving ranges.
April 1: This update covers all emergency orders that have been issued prior to the government’s April 1st announcement of a new provincial lockdown. It covers various orders that loosened public health measures during a period of exponential growth in infections and climbing ICU admissions. Not an April fool’s joke, just a shocking failure of leadership.
March 19: This update covers a wide range of changes made over the past month, including the expiry of the stay-at-home order, the extension of various orders, and changes to rules applicable to five of the six stages of re-opening.
February 15: This update reflects the movement of most remaining health units out of the provincial lockdown on February 16th into colour-coded zones. It also has been updated to reflect special rules for the operation of the American Hockey League.
February 14: This extensive update covers Ontario’s return to a colour coded re-opening system, and the associated creation of a sixth stage of reopening. It also reflects numerous changes to the rules related to the various zones of re-opening. This update does not yet reflect announced changes that are set to come into effect on February 16, 2021. These changes will be reflected in the 63rd edition of the memo.
January 29: This update covers the extension of the second state of emergency to February 9, 2021, the extension of emergency orders, and changes made to the schedule of school re-openings for in-person instruction.
January 18: This update covers the extension of most orders until February 19, 2021. It also discusses an amendment to the sectoral order regulating health service providers, which now permits redeployment of staff between different hospitals, or to retirement homes.
January 15: This update reflects the second declaration of emergency, announced on January 12, 2021, and the new rules associated with that announcement. These new rules include the province-wide stay-at-home order, new enforcement powers for police, and a partial moratorium on residential evictions.
December 22: This update covers the proposed changes to come into effect on December 26th as part of Ontario’s province-wide lockdown. It also adds in additional references to case law that has interpreted provisions of existing orders.
December 21: This update reflects the extension of all emergency orders to January 20, 2021, as well as all of the changes made to the colour-coded stage system up to December 20th. The Ontario-wide lockdown set to commence on Boxing Day will be addressed in the next edition.
November 30: This update reflects the movement of several health units into more restrictive zones within Ontario. Other updates include minor changes to the rules applicable to spaces that are rented out for the purposes of court operations, and the outcome of Ontario’s court proceedings about the effect of the repeal of the limitations period suspension order.
November 25: This update provides a comprehensive update to the new Stage 1 rules for jurisdictions in lockdown. It also reflects the significant changes made the epidemiological thresholds used in Ontario’s colour coding zone system, and its impact on the assignment of health units into zones. Finally, it reflects the most recent extension of emergency orders to December 21, 2020.
October 21: This update covers the extension of most emergency orders to November 21, 2020, the expiry of orders related to electronic health records and electricity price regulation, and new rules respecting dance classes in Stage 2 jurisdictions.
October 7: This update covers significant changes to the rules for Stage 3 jurisdictions, including a province-wide requirement to wear masks in indoor locations, and new restrictions for Toronto, Ottawa and Peel.
September 4: This update covers the extension of most orders to September 22, 2020, the expiry of the education sector order, and changes to rule related to customer information recording for restaurants and tour operators.
July 31: This memo reflects the coming into force of Bill 195, the movement of several health units from Stage 2 into Stage 3, and amendments to the Stage 2 and 3 rules respecting to sports hubs, restaurants, and tour operators.
July 20: This update covers 40 additional orders that were issued the previous week, including a significant re-organization of how rules related to activities in each of Ontario’s three “Stages” are dealt with.
July 9: This update covers the extension of existing emergency orders to July 22, 2020. The memo also now includes an expanded discussion of the constitutionality of Ontario’s actions to date in light of the introduction of Bill 195.
July 7: This version of the memo has been significantly revised and restructured to take into account two significant changes that occurred on July 7, 2020: the movement of the last two jurisdictions in Ontario into “Stage 2” of re-opening, and the government’s tabling of Bill 195, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. This update reviews the proposed new rules related to the exercise of emergency powers following the formal conclusion of the declared emergency under the Emergency Measures and Civil Protection Act contained in the proposed legislation.
July 3: This memo covers changes to the rules respecting patios and indoor sports facilities. In addition, it reflects updated practice directions from the Ontario Court of Justice, Superior Court and Court of Appeal for Ontario related to the application of prescribed timelines in matters before those courts.
June 24: This update covers orders moving Peel and Toronto into Stage 2, as well as changes to the rules applicable to the operation of day camps for children in both Stage 1 and Stage 2 jurisdictions.
June 12: This update covers four important new orders that were issued on July 11th. They include the early expiry of earlier orders dealing with the closure of establishments and rules respecting child care fees, and the shift from a province-wide approach to shutting down businesses two a two-tiered model based on COVID rates in different Health Units.
June 7: This update covers the opening of cottages and lodges, the use of short-term rentals for non-residential purposes, and new rules governing the suspension of limitation periods in legal proceedings.
June 1: This update covers nine new emergency orders that were issued on May 29, 2020. They include new powers for the government to manage retirement homes in COVID-outbreaks; the wind-down of price relief schemes for electricity consumers; the expiry of the prohibition against camping on public lands; rules permitting temporary pandemic pay for certain workers without the requirement to involve labour unions; changes to the essential businesses order; easing of restrictions imposed on religious services; and extensions of most emergency orders to June 9, 2020.
May 20: This update covers emergency orders issued up to May 19th. These new orders implement Ontario’s “phase 1” reopening strategy, and include significant new rules related to the closure of non-essential businesses, establishments, and outdoor recreational amenities. The memo also reflects the extension of emergency orders to May 29th.
May 13: This update covers legislative developments up to and including May 12. Changes include a new order dealing with the take over of management of long-term care homes, the extension of the declaration of emergency by 21 days, and the enactment of the COVID-19 Response and Reforms to Modernize Ontario Act, 2020, which repeals and replaces an earlier order granting relief from various pieces of legislation.
May 9: This update covers two new orders from May 8th: one related to redeployment of workers from the education sector into congregate care settings, and one providing protections for parents who withdraw their children from emergency child care centres.
May 8: This update to Dan’s memo reflects significant changes to the shut down of non-essential businesses order that are phased in between May 8 and 11, 2020. It also reflects the extension of existing emergency orders until May 19, 2020.
May 2: This update covers seven new orders issued between April 30th and May 1st. These orders cover changes to the rules respecting the closure of non-essential businesses, hospital staffing, disclosure of personal health information, electricity pricing, the issuing of death certificates, and wage restraint legislation for front-line workers.
April 27: Dan’s memo has now been updated to include information about five new orders made on April 24th. These orders affect numerous workplaces that were already subject to previous orders, including hospitals, long-term care homes, service providers for developmentally disabled adults and service providers for victims of domestic violence. They also impact new entities, such as intervener services for persons who are deafblind, co-operative corporations, and condominiums.
April 17: In this version of the memo, Dan addresses six new orders that were issued on the evening of April 16th. These include new rules that impact a wide range of workplaces, most significantly municipal employees.
April 15: In this updated version of the memo, Dan discusses three new emergency orders issued on April 14, 2020, impacting long-term care homes as well as service providers for survivors of gender-based violence.
April 14: The Memo now covers eight new orders issued over the long weekend, including orders relating to: the labour-relations consequences of temporary arrangements between hospitals and retirement homes; banning camping on public lands; and the construction of emergency medical facilities. It also includes the Legislature’s extension of the state of emergency for an additional 28 days.
April 10: Dan’s memo now incorporates information about a new emergency order related to the use of force and firearms training requirements for police officers, and additions to the list of essential businesses.
April 8: This updated version of the memo includes information concerning two new emergency orders: one related to the operation of recreational cannabis retailers, and one permitting wills and powers of attorney to be witnesses by videoconferencing in certain circumstances.
April 6: Dan’s memo now incorporates information about two orders issued on the evening of Friday, April 3rd: new rules for services providers for adults with a developmental disability, and extensive new powers to share personal information – including health information related to COVID-19 – with first responders and the Ministry of Health.
April 3: Today’s update includes information about new emergency orders that authorize provincial boards of health and retirement home operators to override collective agreement terms related to staffing and deployment.
April 1: Dan updated his memo today to include information about a new order that gives law enforcement officials enhanced powers to obtain information from individuals believed to be in violation of other emergency orders. The memo now also contains a an appendix containing links to consolidated versions of all orders issued to date.
March 31: This updated memo includes information about a new emergency orders relating to outdoor recreational amenities and rules governing corporate meetings. It also incorporates the extension of the duration of the COVID-19 emergency and earlier emergency orders made in relation to it.
March 30: Dan’s updated memo includes information about four new emergency orders related to long-term care homes and price gouging, and incorporates modifications to earlier orders shutting down certain businesses and prohibiting group gatherings.
March 23: Read the original version of the memo here.