Ontario’s enhanced emergency powers: What employers need to know about Bill 195

Introduction to Bill 195

On July 21, 2020, Bill 195 (the Bill) received royal assent. The Bill’s purpose is to delegate, within limits, from the legislature to the cabinet, certain rule-making and revoking authorities so as to support the appropriate return of employees back to the physical workplace in response to the current threat of COVID-19. 

The Bill came into force on July 24, 2020, enacting the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the Reopening Act). The Reopening Act continues previous emergency powers and orders made under sections 7.0.2 and 7.1 (the Relevant Sections) of the Emergency Management and Civil Protection Act (the Emergency Act) in relation to COVID-19. The Bill provides that any continued orders that fell under these Relevant Sections will cease to apply after 30 days, unless the cabinet extends any orders for additional periods of up to 30 days. 

What does the Bill modify?

The Bill allows for any unrevoked orders previously made under the Relevant Sections of the Emergency Act to continue as effective orders under the Reopening Act, once terminated under the Emergency Act. Orders that fall under the Relevant Sections of the Emergency Act will continue regardless of whether they do not apply to any area of the province on the day of coming into force.

The Bill will affect each of the Relevant Sections of the Emergency Act and the orders that are continued under them as follows:

Section 7.0.2 

• What are section 7.0.2 orders? Orders made under section 7.0.2 of the Emergency Act are intended to promote the public good by protecting the health, safety and welfare of the people in Ontario in times of declared emergencies, in a manner that is subject to the Canadian Charter of Rights and Freedoms. They are intended to protect against harm or damage, or provide a reasonable alternative to other matters that might address the emergency, while being exercised in a manner that limits their intrusiveness.
• How does the Bill affect orders made under section 7.0.2? The Bill allows the following provisions contained in subsections 7.0.2 (6) through (9) to continue in respect of continued orders:
  • Individuals who were providing services authorized by the cabinet will still have protected employment; and
  • Information that a person is required to collect, use or disclose under an order must still be used to respond to or alleviate the effects of the emergency, unless it is for research purposes and any identifying information is removed or the individual related to the information consents to its use; 
  • Information that a person is required to collect, use or disclose under an order will still be subject to any privacy and confidentiality laws of personal information once the declared emergency is terminated, unless it is for research purposes and any identifying information is removed or the individual related to the information consents to its use.

Section 7.1 

• What are section 7.1 orders? The purpose of section 7.1 of the Emergency Act is to authorize the cabinet to make appropriate orders when victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario normally provides, or may be prejudiced by the operation of the law in Ontario. The section gives the cabinet power to make orders to temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government of Ontario and if appropriate, set out a replacement provision for the temporary suspension period. 
• How does the Bill affect orders made under section 7.1? This section remains the same and all unrevoked orders under this section of the Emergency Act will be continued.

Section 7.2 

• What does section 7.2 cover? Section 7.2 of the Emergency Act outlines general procedures involved with an order. 
• How does the Bill affect procedural considerations under section 7.2? The Bill will allow for the following subsections to continue to apply, with respect to continued orders under the Relevant Sections, including any amendments made to such orders. Specifically, this includes the following:
  • An order may be general or specific in its application;
  • In the event of a conflict between an order made under 7.0.2 (4) or 7.1 (2) and a statute, regulation rule, by-law or other instrument of a legislative nature, the order prevails unless the other legislative instrument specifically provides that it is to apply despite this Act;
  • Nothing in the continued sections of the Emergency Act overrides the powers of the Chief Medical Officer of Health.

How long will orders under the Relevant Sections be effective?

The Bill will cause any orders that are continued by the cabinet under the Relevant Sections to end no more than 30 days after they are continued, unless the cabinet extends the order’s effective period before it ends. 

What amending powers does the cabinet have, generally?

In addition to the power to extend an order’s effective period, the cabinet will have the authority to make the following amendments:

• Amend a continued section 7.0.2 order in a similar way that would have been authorized under section 7.0.2 of the Emergency Act during the COVID-19 declared emergency;
• Amend a continued order to address transitional matters relating to the termination of the COVID-19 declared emergency and the general continuation of orders;
• Make regulations defining “public health official” for the purposes of requiring persons to act in compliance with any advice, recommendation or instruction of a public health official under clause 4(2)(b) of the Reopening Act;
• Revoke a continued order; and
• Delegate to a minister of the Crown the amending and revoking powers under the Reopening Act.

What orders can be amended, generally?

The cabinet has the broad authority to make amendments requiring compliance with any advice, recommendation or instruction of a public health official, as well as amendments to any order relating to the following subject matter:

• 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 that relate to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify and 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; these processes include the activities, processes, procedures and proceedings for appointing and reappointing health care staff and determining the nature and scope of privileges assigned to them; or
• Prohibiting or regulating gatherings or organized public events.

What orders cannot be amended, generally?

The cabinet does not have the power to amend certain orders under Ontario Regulations (OR), including, but not limited to:

• Temporary Health or Residential Facilities (141/20)
• Management of Long-Term Care Homes in Outbreak (210/20)
• Management of Retirement Homes in Outbreak (240/20) 
• Special Rules Re Temporary Pandemic Pay (OR 241/20) 

What can an amendment include?

An amendment may impose more onerous or different requirements, including in different parts of the province and in the future, and can be retroactively applied to any date on or after July 24, 2020.  An amendment may also extend an amended order’s application, including its geographic scope and who it applies to.

How long will the cabinet’s power to amend and extend orders last?

The cabinet is authorized to extend and amend orders under the Relevant Sections for one year starting on July 24, 2020. This expiration can be extended for additional one year periods, if recommended by the Premier, by resolution by the legislature. While waiting for a resolution to be voted on, the cabinet’s power to extend and amend orders will continue. Previously extended and unrevoked orders will continue until the end of the extension date regardless of when the cabinet’s power ends.

What are the consequences of non-compliance?

Enforcement provisions included in the Bill provide orders for contravention and offences. 

Any person who contravenes a continued section 7.0.2 order under the Reopening Act may be restrained by order of a judge of the Superior Court of Justice. The judge may make and enforce the order in the same manner as any other order or judgment of the Superior Court of Justice.

Any person who fails to comply with a continued section 7.0.2 order under the Reopening Act or who interferes with or obstructs any person in the exercise of power or performance of duty conferred by such an order is guilty of an offence and is liable on conviction. A person is guilty of a separate offence for each day that they fail to comply, interfere or obstruct performance of such an order. An individual cannot be charged with an offence in respect of an order that has been amended retroactively, if the conduct occurred before the retroactive amendment was made but after the retroactive date specified in the amendment.

The following are the possible fines and terms of imprisonment for the offence:

• Individuals who are not directors or officers of a corporation can be subject to a fine of not more than $100,000 and a term of imprisonment of not more than one year;
• Individuals who are directors or officers of a corporation can be subject to a fine of not more than $500,000 and a term of imprisonment of not more than one year;
• Corporations can be subject to a fine of not more than $10,000,000; and
• The court may increase these maximum fines by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the offence.

What reporting obligations does the Premier have?

The Premier, or a delegated Minister, is required to report regularly to the public on any extended orders and the rationale behind those extensions to a standing or select committee of the legislature at least once every 30 days. The Premier has 120 days to table a report in the legislature on the rationale of all orders that they amended or extended, after one year or after any extension of the power to extend or amend orders.

Take-aways

Bill-195 provides the cabinet with broad authority to impose requirements and extend orders relating to Ontario’s public and private places, including workplaces, and the compliance with guidance provided by public health officials. All Ontarians have the potential to be impacted. As the consequences of non-compliance with applicable orders can be severe, employers would be wise to ensure that any continued orders are respected and followed this summer and beyond.