Democracy, Emergency and the Reopening Ontario Act

Democracy has both what we might term formal or legal elements and philosophical components. While sometimes both are contemporaneous, at other times, only one accurately describes the state of play. The Ontario government’s Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“Reopening Ontario Act” or “the Act”) illustrates this. Following several extensions of its emergency declaration under the Emergency Management and Civil Protection Act (“EMCPA”), Premier Doug Ford’s government enacted the Reopening Ontario Act ending the declaration of emergency yet containing provisions with an impact similar to that of the EMCPA. It eliminated the apparently annoying requirement of having to keep returning to the legislature to renew the declaration. While legal and democratic in form, in substance, this approach fails to observe the democratic temperament.

In our current iteration, democracy means majority rule and in the Westminster model, that in turn means one of two things: the party winning the most seats in an election (although not necessarily and not often the most votes) or the party that is able to obtain the sufficient support of other parties forms the government and has the power of the executive. A crucial difference flows from how the executive gains its authority: whether its party holds the majority of seats or whether it is able to attract the support of the other parties.

A majority government is effectively free to do as it wishes, as long as it conforms to external requirements, including the Canadian Charter of Rights and Freedoms, human rights requirements and administrative law principles. The impact of other parties’ opposition to the government’s actions will vary, depending on the extent to which their views accord with public opinion and the extent to which members of the public are prepared to signal their disagreement.

The impact of this difference in the source of power can be seen in the differing fates of the Ontario Conservative government’s effort to move beyond its declaration of emergency and of the federal Liberal government’s attempt to maintain control over spending and taxation as the pandemic continues. Both sought to govern with convenience: the former succeeded, the latter failed.

The fact that the Ford government has the majority in the legislature allowed it to enact the Reopening Ontario Act without having to address the concerns of other parties in the same way that the minority Trudeau government had to respond to opposition by other parties federally when it sought in March to extend its spending and taxation powers without oversight until the end of December 2021 (see CTV report here). Both results are quite consistent with the democratic process, of course.

However, while a minority government may find itself limited because it is on the edge of defeat unless it successfully negotiates and trades with the other parties, a majority government will likely have a relatively easy time pursuing its own agenda. It also needs to remember, however, that a democratic system requires what it does to be in line with the democratic principle of consultation and respect for the views represented by the other parties. Only one of these requires governments to see beyond its own convenience or agenda, the other makes it optional.

A significant consequence of the passage of the Reopening Ontario Act is that section 17 declares the COVID-19 emergency to be over. This defines the status of the pandemic in Ontario for legal purposes, but not necessarily for other purposes, such as the extent to which people will in fact take advantage of the reopening of Ontario, the impact of the virus on individuals who are infected or the necessity of taking certain measures to prevent its spread, such as a willingness to wear masks (a report in The Globe and Mail today indicates that the vast majority of Canadians support mask-wearing) or “lockdown” again (see The Globe and Mail here). It does reflect a decline in the number of cases and the capacity of health facilities to deal with future outbreaks.

Although there was some opposition, there was also widespread support for the Ontario government’s declaration of an emergency and subsequent orders under the EMCPA on March 17, 2020, reflecting what we knew about its spread in other countries and its worsening in Ontario. (Certain orders had been made prior to March 17th, such as the closing of schools after the March break, as well as recommendations by the medical officer of health that became orders, such as the size of groups; other institutions also acted, such as the courts, which stopped in-person hearings [see my post here].)

The EMCPA provided considerable discretion to the executive to make orders that reshaped daily life in Ontario, as well as departures from, for example, collective agreements affecting health care facilities. Under section 7.0.1 of the EMCPA, the Lieutenant Governor in Council or the Premier may declare an emergency and if declared by the Premier, the Lieutenant Governor in Council must confirm it within 72 hours. The declaration expires after 14 days unless extended for another 14 days by the Lieutenant Governor in Council ; after that, the legislature may extend the declaration for periods of up to 28 days (s.7.0.7, EMCPA). The specific orders under the declaration will also end after 14 days unless extended for periods of 14 days (s.7.0.8, EMCPA).

Thus under the EMCPA, it is necessary for a government to keep renewing the declaration and to rely on the legislature to maintain it for an extensive period. Given that the Ford government has a majority, this was not difficult, but it did mean the process had a public face, especially since regular media coverage of the pandemic was still considerable. (My earlier Slaw posts on the emergency declaration are here and here.) But having to maintain a declaration on a regular basis both says something about the state of the pandemic and the inconvenience of, after a time, constantly returning to the legislature.

The Reopening Ontario Act addresses both these issues: it delivers the message that the pandemic has reached a different stage — we’re out of lockdown, we’re getting back to normal — and it gives the government greater flexibility in continuing orders. These are the same orders that were warranted by the emergency, but it now seems are warranted under a “process of long-term growth”, as the government describes the third stage.

The legislation has been criticized for overreach, abuse of government power and overriding of collective agreements (see Law Times; also see a TVO analysis comparing elements of the EMCPA and the Reopening Ontario Act.

The process of enacting the Reopening Ontario Act was democratic, in that it was passed by the majority of the legislature, but it takes place in a different context compared to the declaration of emergency in March. (I note, though, that it was a quick passage: introduced on July 7th, it received second reading on July 14th and all subsequent steps on July 21st, coming into effect on July 24th.) It gives the executive considerable power without having to go through the processes required under the EMCPA.

Presumably, the government’s actions under the Reopening Ontario Act will be guided by the Framework for Reopening our Province, even though all regions of Ontario have now reached the final stage 3 of opening (termed “recover”), other than Windsor-Essex (see my Slaw post on the Framework here). Return to lockdown is still possible if there is a renewed COVID-19 surge. And there still remain restrictions based on the advice of the Chief Medical Officer of Health on the number of persons who can gather together and the requirement of physical distancing, for example (see here).

Under section 2(1) of the Reopening Ontario Act, orders made under the EMCPA have been transformed into orders under the Reopening Ontario Act (see the list of orders [regulations]here), unless they had been revoked prior to July 24th. (The orders made under the EMCPA but now revoked are available here [for example, O.Reg. 140/20, Agreements between Health Service Providers and Retirement Homes, which was revoked “on the last instant of July 23, 2020) Even if an order does not currently apply to any area of the province, it continues if it has not been revoked (for example, O.Reg. 82/20, Rules for Areas in Stage 1). However, under section 3, an order continued under the Reopening Ontario Act ceases to apply 30 days after it has been continued under section 2 unless it is extended by the Lieutenant Governor in Council (that is, Cabinet with the approval of the Lieutenant Governor and thus in practice this refers to Cabinet decisions) before it expires.

Significantly, the Lieutenant Governor in Council may amend these orders “in a way that would have been authorized under section 7.0.2 of the EMCPA”. Section 7.0.2 of the EMCPA requires that the orders are to “protect[] the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms”. Among other requirements under section 7.0.2 of the EMCPA are the following:

1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.

2. An order shall only apply to the areas of the Province where it is necessary.

3. Subject to section 7.0.8, an order shall be effective only for as long as is necessary.

Section 7.0.8 of the EMCPA provides for 14 day extensions by the Lieutenant Governor in Council “during a declared emergency”. Notably, the EMCPA also provides for extension of orders even if the declaration of emergency has been terminated or the legislature has disallowed it under section 7.0.9 (1) of the EMPCA:

Despite the termination or disallowance of the emergency, the Lieutenant Governor in Council may by order extend the effective period of an order made under subsection 7.0.2 (4) for periods of no more than 14 days where the extension of the order is necessary to deal with the effects of the emergency. (s.7.0.8(4), EMCPA)

The Reopening Ontario Act deftly bypasses this provision, allowing the government to deal with renewal (and changes in) orders under that Act rather than as a “leftover” from the EMCPA. The amendments to orders under the Reopening Ontario Act may “[i]mpose more onerous or different requirements, including in different parts of the Province” and/or “[e]xtend the application of the order being amended, including the geographic scope of the order and the persons it applies to” (s.4(6)). Notably, it may also be amended retroactively to a date specified in the amending order (but not before the Reopening Ontario Act came into force on July 24, 2020).

Retroactivity is consistent with other legislative provisions enacted by the Ford government. For example, section 11 of the new Crown Liability and Proceedings Act, 2019, which replaced the Crown Proceedings Act, lists a number of situations where no cause of action arises (such as a broadly defined “policy matter” and section 11(7) states, “No proceeding may be brought or maintained against the Crown or an officer, employee or agent of the Crown in respect of a matter referred to in subsection (1) [negligence or lack of reasonable care re legislative actions], (2) [regulatory decisions made in good faith], (3) [failure to make a regulatory decision] or (4) [policy matters]”; section 11(8) makes the provision retroactive with the result that any ongoing case that was based on these circumstances is dismissed: “A proceeding that may not be maintained under subsection (7) is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished under subsection (1), (2), (3) or (4)”.

A variant of this provision occurs under the amended Legal Aid Services Act, 1998; section 72.3 provides that current agreements for funding, dispute resolution and consultation between Legal Aid Ontario and legal aid clinics and student clinics will expire on April 1, 2021 even if there is not a new agreement reached by that date.

The Reopening Ontario Act appears to continue until it is repealed: there is not an expiry date or sunset clause. However, both the power to extend and the power to amend orders expire on the first anniversary of the continuation of the orders (s. 8(1) Reopening Ontario Act), although the Legislative Assembly may extend the expiry date for periods of no more than a year (s. 8(2) Reopening Ontario Act). The first extension of these powers would be July 24, 2021, with an election by June, 2022. Furthermore, if an order is extended, it continues to the date of its extension even if the power to extend orders has expired (s.8(4) Reopening Ontario Act). Section 8(4) of the Act appears to apply to the power to amend orders, since its heading refers to both the power to amend and extend, although the provision itself does not refer to the power to amend.

Amendments must relate to certain subject matters identified under the Act or to “any advice, recommendation or instruction of a public health official” (s. 4 of the Act). The “subject matters” are limited but broad in scope: closing or regulating public or private places; providing for rules or practices in 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”; and prohibiting public events or gatherings, or regulating them. This permits the government to close down businesses that have been reopened if there is a surge in COVID-19 cases, for example.

Certain orders may not be amended (for example, electricity pricing at three levels; enforcement of orders; the construction of temporary health or residential facilities, making them exempt from certain requirements, but subject to others intended to assess safety; the power of the relevant official to make specific orders in long-term care homes or retirement homes if a resident or staff member tests positive for COVID-19; and exemption from certain requirements to make temporary patios, among others) (see s.4(5) of the Act for the complete list). The Lieutenant Governor in Council may also make regulations defining “public health official” under section 4(8).

Section 6 permits the Lieutenant Governor in Council to delegate any of the powers under sections 3 (extending orders), 4 (amending orders) and 5 (revocation of orders) to a cabinet minister, thereby reducing oversight further.

There are parameters around the decisions made under the Reopening Ontario Act, since it incorporates explicitly sections 7.2(3) to (8) of the EMCPA under section 7 of the Act, as modified. For example, reading section 7.2(4) of the EMCPA to apply to the Reopening Ontario Act provides for primacy of orders made under the Reopening Ontario Act over existing legislation (or other instruments), except for the Occupational Health and Safety Act (s.7.2(8) EMCPA), where there is a conflict unless the relevant legislation provides otherwise. Importantly, the Act cannot derogate from the powers of the Medical Officer of Health “as defined in subsection 1 (1) of the Health Protection and Promotion Act (s.7.2(5)) (but note that the Lieutenant Governor in Council can change the definition of public health officer under section 4(8) of the Reopening Ontario Act). Provisions relating to the use of information and data under sections 7.0.2(6) to (9) of the EMCPA also apply under the Reopening Ontario Act.

As under the EMCPA, ex parte, or without notice, enforcement is permitted under section 9 of the Reopening Ontario Act by application to a judge of the Superior Court of Justice. The penalties are also the same: fines are up to $100,000 for an individual who would also be liable for imprisonment of up to a year, with a director or officer of a corporation being subject to a fine of up to $500,000; a corporation is liable to a fine of up to $10,000,000; the court also has the discretion to require the person to pay an amount equal to that gained from the commission of the offence (s.10).

No one can be charged under an order that has been amended retroactively if the conduct occurred before the retroactive amendment was made but after the retroactive date (the provision is retroactive, but the conduct is not affected retroactively). However, there may be other actions or rights that are affected by the retroactivity; thus claims that might have been made in relation to the order may be effectively extinguished by the retroactivity. In contrast, section 14 of the Reopening Ontario Act incorporates section 11 of the EMCPA to protect government and bureaucratic actors from any action taken under the Act in relation to orders under the Act.

The premier or a minister is to make reports to the public “regularly” (s.11 Reopening Ontario Act) and “at least once every 30 days” the premier or minister is to report to a standing committee about the extension of orders and “the rationale for those extensions” (s.12 of the Act). These are opportunities for the public and other parties in the legislature to review the government’s actions, although nothing in the Act gives anyone else the power to provide an actual check on the government’s actions. The premier is to table a report within 120 days after the first anniversary of the continuation of orders relating to amended and extended orders (that is, 120 days after July 24, 2021) and the rationale for same “including how any applicable conditions and limitations on the making of the amendments were satisfied” and similarly, the premier is to make reports to the legislature relating to the extension of powers to extend and amend (s.13 of the Act).

By enacting the Reopening of Ontario Act, the government has retained many of the powers it acquired through the declaration of the emergency under the EMCPA. A declaration of emergency allows governments to sidestep procedures it will normally be expected to take or to enact orders that are more restrictive of people’s liberties or ordinary behaviour than would normally be countenanced. It allows the government to override provisions of collective agreements in sectors it identifies and constrain businesses more than would normally be the case. This is because the public generally accepts there is an emergency that must be brought until control, in this case the pandemic. Now, however, the government has terminated the declaration of the emergency, but continues to possess powers that it acquired under the emergency, but with less oversight. This is not to say that the government does not need to retain the ability to respond to the vicissitudes of the pandemic, both its current phase and any subsequent surges. Evidence elsewhere suggests it is needed. Yet by shifting from the EMCPA to the more positive and optimistic Reopening of Ontario Act, it is able to eliminate even the vestiges of legislative democracy in order to benefit from the processes of executive authority.