COVID-19 and Municipalities: What Emergency Powers Do Municipalities Actually Have?
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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:
- the EMCPA imposes requirements on municipalities (to establish emergency management programs under s. 2.1 and emergency management plans under s. 3) but does not expressly grant them any new powers;
- the principal grant of authority to heads of council (mayors) is the ability to declare an emergency and do whatever the municipality’s emergency management plan (adopted by by-law) authorizes them to do;
- the paramountcy clause in the EMCPA is limited to orders made by the Lieutenant Governor in Council under ss. 7.0.2(4) and 7.1(2). In other words, there is no legislative signal that the EMCPA provisions related to municipalities prevail over the constraints on the exercise of municipal powers under other acts; and
- the Municipal Act, 2001 and the City of Toronto Act, 2006 already provide municipalities broad powers to pass by-laws to address the “health, safety and well-being of persons” and for the “protection of persons and property” (Municipal Act, 2001: ss. 10 (2) 6 & 8 and 11(2) 6 & 8; City of Toronto Act, 2006 ss. 8 (2) 6 & 8).
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:
- unilaterally declare a state of emergency;
- take such action and make such orders (as he or she considers necessary) to:
- implement the emergency plan (which was adopted by by-law); and
- to protect property and the health, safety and welfare of the inhabitants of the emergency area,
- provided that such actions and orders are “not contrary to law.”
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:
- the actions and orders a head of council may take to implement the emergency plan should already be spelled out in the by-law adopting the plan. If a head of council steps outside the authority provided in the emergency plan, that would be contrary to the emergency plan by-law and hence “contrary to law” (unless that authority is provided in another by-law or in other legislation);
- municipalities already have the authority to pass by-laws to protect property and the health, safety and welfare of their inhabitants, and these powers are required by the Municipal Act, 2001 (and the City of Toronto Act, 2006, which shares most of the same legislative DNA). Given the lack of a paramountcy clause for s. 4 of the EMCPA, it would be “contrary to law” for a head of council to exercise these powers through, for instance, orders that are not authorized by any municipal by-law.
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:
- the power being exercised must be within the scope of a municipality’s powers as set out under the Municipal Act or other municipal legislation;
- the power will usually need to be instrumentalized through a by-law giving it shape and specificity. For example: municipalities have the power to license businesses, but they must first pass a by-law setting out which business must be licenced, how to apply and the criteria for issuing or denying a license, etc.;
- the delegation of that power to a head of council must also be by by-law;
- the power being delegated must be a type of power that can be delegated. For example, s. 23.2 of the Municipal Act (and 21(1) of the City of Toronto Act, 2006) prohibit the delegation of most legislative and quasi-judicial powers of council, a prohibition that is largely reflective of the common law;
- the delegation must be subject to appropriate constraints: for instance, ss. 23.1–23.6 of the Municipal Act (and 21–24 of the City of Toronto Act, 2006) provide a number of rules or constraints for delegation of powers but there are also common law principles that can render a delegation of power improper if not followed.
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:
- that a health hazard exists in the health unit served by him or her; and
- that the requirements specified in the order are necessary in order to decrease the effect of or to eliminate the health hazard.
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):
- 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.
- The authority delegated to the Mayor in Subsection A may only be exercised in accordance with the following criteria:
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:
- closing of premises: medical officers of health and public health inspectors have extensive powers under the Health Protection and Promotion Act to make orders to protect public health, including closure of premises;
- restricting business operations: for businesses that are required to be licenced, municipal business licencing by-laws typically make it a term of a licence requiring compliance with all applicable laws. This would include the provincial closure orders. They may also make provisions for suspension or revocation of licenses for public health reasons. A suspension or revocation generally gives rise to a right of appeal – and most municipalities are not hearing appeals at this time. A better option is to look for powers in the by-laws to order compliance.
- parks and outdoor amenity areas: most municipalities have parks by-laws that allow them to close parks or areas within parks, usually by posting signage;
- other municipally owned public spaces: some municipalities have parks by-laws where the definition of ‘park’ is broadly worded enough to encompass other municipally owned public spaces. Others have separate by-laws specifically for this purpose. For municipalities that have neither, there is always the option of notice under ss. 3 & 5 of the Trespass to Property Act.
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