A number of GTHA municipalities have now passed social or physical distancing by-laws, with more on the way. Some have been passed by municipal heads of council (mayors) acting unilaterally – without a council vote, in reliance on section 4 of the Emergency Management and Civil Protection Act (“EMCPA”).
Section 4; however, does not give a head of council by-law making powers. As discussed in our article on municipal emergency powers the EMCPA itself does not expressly provide municipalities or their heads of council with any new powers not already found in other municipal legislation ? other than the ability to declare a state of emergency. Nor does it override the restrictions in the Municipal Act, 2001 or the City of Toronto Act, 2006 for delegation of council’s legislative functions.
By contrast, when Toronto Mayor John Tory unilaterally passed a by-law on April 2, 2020 to impose emergency physical distancing regulations in City parks and public squares, he relied on delegated authority to pass by-laws in a municipal state of emergency that the City already had in place.
How did the Toronto Mayor have the authority to pass the by-law without the support of City Council? First, he declared a state of emergency under section 4 of the Emergency Management and Civil Protection Act (“EMCPA”). The declaration engaged the delegated authority provisions under Toronto’s Emergency Management Plan (Toronto Municipal Code Chapter 59, Emergency Management) which are very broadly worded (§. 59–6.1):
Subject to the provisions of Subsections B and D, any restrictions on such delegation identified in the City of Toronto Act, 2006, other legislation or at common law, City Council delegates its statutory authority under the City of Toronto Act, 2006, and under any other legislation, to the Mayor, exclusively for use in emergencies.
So, next we must turn to the City of Toronto Act, 2006. The act limits the legislative and quasi-judicial powers that may be delegated to City staff to those that are “minor” in nature (amongst other restrictions), but allows far broader authority to be delegated to members of Council, or bodies of two or more persons that are made up of at least 50% members of Council (see ss. 21–24 of the City of Toronto Act, 2006 and O. Reg. 447/07: Listed Acts - Delegation By City).
The main limitations on legislative powers that can be delegated to members of council are:
So, on paper at least, Toronto’s Mayor had the authority to pass the City’s social distancing by-law. By-law 322-2020 amends Toronto Municipal Code, Chapters 608 and 636 to prohibit remaining within parks and public squares:
…for longer than an incidental period, closer than 2 metres to any other person who is not a member of the same household [https://www.toronto.ca/legdocs/bylaws/2020/law0322.pdf]
While the main purpose of the bylaw appears to be deterrence, we can expect constitutional challenges if anyone is ultimately prosecuted. Is the original broad delegation of powers under the City’s emergency management plan overbroad or unconstitutionally vague? Is it lawful to use delegated legislative powers to create an offense? We can expect to learn a lot more in coming months on the limits of a municipality’s ability to delegate legislative authority. The opposite set of questions are also important: did the City go far enough (some municipalities have gone further)? Could the City have required social distancing more broadly? Did apprehension over the manner of adoption result in a by-law more limited in scope than would otherwise be the case?
Municipalities now have the ability to hold electronic council meetings, including special meetings, which will allow bylaws to be adopted rapidly if necessary. It is not at all clear that the risks and limitations (real or imagined) of unilateral adoption of a regulatory by-law is worth whatever benefits in expediency it provides, even in a state of emergency.