A burning question being debated in municipalities across the province right now is can a head of council order the closure of premises either to support the Province’s closure of nonessential workplaces or to enhance it? Many have heard the strong statements by Toronto’s Mayor regarding closures and are looking to the Emergency Management and Civil Protection Act (“EMCPA”) for that power.
This article shares our thoughts on the question: what does the EMCPA actually allow municipalities and their heads of council to do (beyond the powers they already have)? We will also look at what the City of Toronto is actually doing with respect to workplaces that remain open contrary to the provincial closure order (Ontario Regulation 82/20) and how municipalities can make best use of their existing by-laws.
What Additional Powers Does the EMCPA Provide to Municipalities?
The answer to whether the EMCPA provides municipalities with additional powers is unclear, but it appears that the act does little to extend municipal powers in the time of emergencies. We say this for the following reasons:
For municipalities, the core provisions of the EMCPA are subsection 2.1 (the requirement to develop and adopt by by-law an emergency management program), section 3 (the requirement to formulate and adopt by by-law an emergency management plan), and section 4 (the power of a head of council to declare a state of emergency).
It is in section 4 that some have sought to find extra powers for the head of council that are not provided for under the Municipal Act, 2001:
4 (1) The head of council of a municipality may declare that an emergency exists in the municipality or in any part thereof and may take such action and make such orders as he or she considers necessary and are not contrary to law to implement the emergency plan of the municipality and to protect property and the health, safety and welfare of the inhabitants of the emergency area.
Let’s break this provision down into its key components. It allows a head of council to:
The ability to declare a municipal state of emergency is a specific power granted to a head of council by the EMCPA. But the rest of the provision does not seem to add anything to the powers municipalities already have and can delegate to a head of council (by by-law). In particular:
Core Principles for the Exercise and Delegation of Municipal Powers
All this is not to say that a municipality cannot pass by-laws that protect the property, health, safety and welfare of their inhabitants: they can, and they do, whether in the context of an emergency plan by-law or otherwise. Nor is this to say that municipalities cannot delegate emergency powers to a head of council – the EMCPA calls for them to do so.
Rather, some basic principles need to be followed in order for a head of council to operate legally:
What is Toronto Actually Doing?
Circling back to the Toronto example, it is one thing to issue warnings about orders to close and another to actually close premises legally. The initial statements, which gave some the impression of a head of council operating through personal decree, have been followed by press coverage that should disabuse us of that notion.
For instance, Global News reported that it is actually Toronto Public Health that is doing the heavy lifting to achieve compliance by bars and restaurants (see https://globalnews.ca/news/6732144/toronto-playgrounds-parks-closed-coronavirus/). The Health Protection and Promotion Act provides medical officers of health and public health inspectors with broad powers to make orders to protect public health, including ordering the closure of premises (see ss. 13 and 14). For instance, they may order the closure of a premise provided:
Toronto is also closing City-operated park amenities, including playgrounds, picnic sites, park shelters, sport courts, off-leash dog parks and trails, skate parks, outdoor fitness equipment, tennis courts and community gardens, which it can do under Toronto Municipal Code Chapter 608, Parks.
In other words, the City is using powers it (and Toronto Public Health) have under existing legislation and by-laws rather than attempting to read novel powers into the EMCPA – although the Mayor is clearly playing a leadership role in the way the City is using its powers.
It should also be noted that Toronto’s Emergency Management Plan (Toronto Municipal Code Chapter 59, Emergency Management) does not purport to provide to the Mayor any novel powers (§. 59–6.1):
The delegation of authority is broad here, but the City clearly acknowledges the delegation is limited by the provisions of the City of Toronto Act, 2006 and common law – in other words, there is no attempt to interpret the EMCPA (and its predecessor legislation) as altering what can be delegated. There is also notably, an extensive list of criteria to guide the delegation of powers that follows the above quotation.
What Can Other Municipalities Do?
There are at least four things that municipalities (and in the case of single-tier and upper-tier municipalities, their boards of health) can do using existing by-laws and powers:
In a later article in this series we will look at the operations and powers of municipal by-law enforcement during this time of crisis.
We will continue to provide analysis and updates of the many changes impacting municipalities in the wake of the COVID-19 pandemic. You can find our other articles here: https://www.omh.ca/articles.html
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.