Kootnekoff: Legal framework amid COVID-19 fears

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice

Have you wondered what legal framework governs B.C.’s response to COVID-19?

The Emergency Program Act (EPA), passed in 1993, is the principal legislation for responding to disasters and emergencies in British Columbia.

If the Minster of Public Safety, or the entire cabinet, is satisfied that an emergency exists or is imminent, the Minister or cabinet may declare a state of emergency under s. 9(1) of the EPA.

The Minister may then exercise certain powers to respond to that emergency. Section 10 of the EPA allows the Minister to do all acts and implement all procedures he considers necessary to prevent, respond to, or alleviate the effects of an emergency or disaster, including certain specified powers.

Anyone who contravenes the EPA or a regulation made under it, or who “interferes with or obstructs any person in the exercise of any power or the performance of any duty conferred or imposed under” the EPA may be fined up to $10,000 or imprisoned for up to one year, or both.

The government’s powers during this time are limited by legislation, the common law, and the Canadian Charter of Rights and Freedoms.

Under the EPA, a declared state of emergency expires 14 days from the date it is made. The Lieutenant Governor in Council may extend the duration of the declaration for further periods of not more than 14 days at a time.

Under section 11, when, in the opinion of the minister or the Lieutenant Governor in Council, an emergency no longer exists in an area in relation to which a declaration of a state of emergency was declared, the minister or the Lieutenant Governor in Council must make an order cancelling the declaration of a state of emergency in respect of that area.

On March 17, 2020, before the state of emergency was declared under the EPA, the Provincial Health Officer, Dr. Bonnie Henry, declared a “public health emergency” under the Public Health Act.

On March 18, 2020, the Minister of Public Safety and Solicitor General issued Ministerial Order M073 under the EPA, declaring a state of emergency throughout the entire province respecting COVID-19.

Since then, the Minister has made numerous ministerial orders under the EPA, including M094 dated April 2, 2020 and M120 dated April 22, 2020 which relieved essential services from liability for damages caused by exposure to COVID-19 in certain circumstances. Many were aimed at making life easier for some, such M089 and M098 regarding residential evictions. The Ministerial Orders are available here.

The state of emergency has been extended four times. The most recent extension is until May 26, 2020.

Declaring a state of emergency over the entire province is an extraordinary and rarely used measure. While some may have considered this necessary, others may feel that their rights have been violated, and may seek to pursue legal remedies.

Missed last week’s column?

Kootnekoff: Changes to the Employment Standards Act

About : Susan Kootnekoff

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides.

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