[37] Bill 148 Royal Assent (PDF)
Bill 148 2002
An Act to provide for
declarations of death in certain
circumstances and to amend the
Emergency Plans Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Declarations of Death Act, 2002
1. The Declarations of Death Act, 2002, as set out in the Schedule, is hereby enacted.
Amendments to the
Emergency Plans Act
2. The title of the Emergency Plans Act is repealed and the following substituted:
Emergency Management Act
3. (1) Section 1 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule P, section 3, is amended by adding the following definition:
"emergency management program" means a program developed under section 2.1 or 5.1; ("programme de gestion des situations d'urgence")
(2) The definition of "emergency plan" in section 1 of the Act is repealed and the following substituted:
"emergency plan" means a plan formulated under section 3, 6, 8 or 8.1; ("plan de mesures d'urgence")
4. The Act is amended by adding the following section:
Municipal emergency management programs
2.1 (1) Every municipality shall develop and implement an emergency management program and the council of the municipality shall by by-law adopt the emergency management program.
Same
(2) The emergency management program shall consist of,
(a) an emergency plan as required by section 3;
(b) training programs and exercises for employees of the municipality and other persons with respect to the provision of necessary services and the procedures to be followed in emergency response and recovery activities;
(c) public education on risks to public safety and on public preparedness for emergencies; and
(d) any other element required by the standards for emergency management programs set under section 14.
Hazard and risk assessment and
infrastructure identification
(3) In developing its emergency management program, every municipality shall identify and assess the various hazards and risks to public safety that could give rise to emergencies and identify the facilities and other elements of the infrastructure that are at risk of being affected by emergencies.
Confidentiality for defence reasons
(4) Subject to subsection (5), a head of an institution, as defined in the Municipal Freedom of Information and Protection of Privacy Act, may refuse under that Act to disclose a record if,
(a) the record contains information required for the identification and assessment activities under subsection (3); and
(b) its disclosure could reasonably be expected to prejudice the defence of Canada or of any foreign state allied or associated with Canada or be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism.
Same
(5) A head of an institution, as defined in the Municipal Freedom of Information and Protection of Privacy Act, shall not disclose a record described in subsection (4),
(a) if the institution is a municipality and the head of the institution is not the council of the municipality, without the prior approval of the council of the municipality;
(b) if the institution is a board, commission or body of a municipality, without the prior approval of the council of the municipality or, if it is a board, commission or body of two or more municipalities, without the prior approval of the councils of those municipalities.
Confidentiality of third party information
(6) A head of an institution, as defined in the Municipal Freedom of Information and Protection of Privacy Act, shall not, under that Act, disclose a record that,
(a) contains information required for the identification and assessment activities under subsection (3); and
(b) reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly.
Meetings closed to public
(7) The council of a municipality shall close to the public a meeting or part of a meeting if the subject matter being considered is the council's approval for the purpose of subsection (5).
Application of Municipal Freedom of Information
and Protection of Privacy Act
(8) Nothing in this section affects a person's right of appeal under section 39 of the Municipal Freedom of Information and Protection of Privacy Act with respect to a record described in this section.
5. (1) Subsections 3 (1) and (2) of the Act are repealed and the following substituted:
Municipal emergency plan
(1) Every municipality shall formulate an emergency plan governing the provision of necessary services during an emergency and the procedures under and the manner in which employees of the municipality and other persons will respond to the emergency and the council of the municipality shall by by-law adopt the emergency plan.
(2) Subsection 3 (4) of the Act is repealed and the following substituted:
Specific emergencies may be designated
(4) The Lieutenant Governor in Council may designate a municipality to address a specific type of emergency in its emergency plan and, if so required, the municipality shall include the type of emergency specified in its emergency plan.
(3) Section 3 of the Act is amended by adding the following subsections:
Training and exercises
(5) Every municipality shall conduct training programs and exercises to ensure the readiness of employees of the municipality and other persons to act under the emergency plan.
Review of plan
(6) Every municipality shall review and, if necessary, revise its emergency plan every year.
6. Section 5 of the Act is repealed and the following substituted:
Where emergency plan to have no effect
5. The emergency plan of an area municipality in a district or regional municipality or the County of Oxford, as the case may be, shall conform to the emergency plan of the district or regional municipality or the County of Oxford, as the case may be, and has no effect to the extent of any inconsistency.
7. The Act is amended by adding the following section:
Emergency management programs of provincial
government bodies
5.1 (1) Every minister of the Crown presiding over a ministry of the Government of Ontario and every agency, board, commission and other branch of government designated by the Lieutenant Governor in Council shall develop and implement an emergency management program consisting of,
(a) an emergency plan as required by section 6;
(b) training programs and exercises for Crown employees and other persons with respect to the provision of necessary services and the procedures to be followed in emergency response and recovery activities;
(c) public education on risks to public safety and on public preparedness for emergencies; and
(d) any other element required by the standards for emergency management programs set under section 14.
Hazard and risk assessment and
infrastructure identification
(2) In developing an emergency management program, every minister of the Crown and every designated agency, board, commission and other branch of government shall identify and assess the various hazards and risks to public safety that could give rise to emergencies and identify the facilities and other elements of the infrastructure for which the minister or agency, board, commission or branch is responsible that are at risk of being affected by emergencies.
Confidentiality of third party information
(3) A head of an institution, as defined in the Freedom of Information and Protection of Privacy Act, shall not, under that Act, disclose a record that,
(a) contains information required for the identification and assessment activities under subsection (2); and
(b) reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly.
Application of Freedom of Information and
Protection of Privacy Act
(4) Nothing in this section affects a person's right of appeal under section 50 of the Freedom of Information and Protection of Privacy Act with respect to a record described in this section.
8. Subsection 6 (2) of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule P, section 4, is repealed and the following substituted:
Training and exercises
(2) Every minister of the Crown described in clause (1) (a) and every agency, board, commission or other branch of government described in clause (1) (b) shall conduct training programs and exercises to ensure the readiness of Crown employees and other persons to act under their emergency plans.
Review of plan
(3) Every minister of the Crown described in clause (1) (a) and every agency, board, commission or other branch of government described in clause (1) (b) shall review and, if necessary, revise its emergency plan every year.
9. The Act is amended by adding the following section:
Chief, Emergency Management Ontario
6.1 The Lieutenant Governor in Council shall appoint a Chief, Emergency Management Ontario who, under the direction of the Solicitor General, shall be responsible for monitoring, co-ordinating and assisting in the development and implementation of emergency management programs under sections 2.1 and 5.1 and for ensuring that those programs are co-ordinated in so far as possible with emergency management programs and emergency plans of the Government of Canada and its agencies.
10. The Act is amended by adding the following section:
Emergency plans submitted to Chief
6.2 (1) Every municipality, minister of the Crown and designated agency, board, commission and other branch of government shall submit a copy of their emergency plans and of any revisions to their emergency plans to the Chief, Emergency Management Ontario, and shall ensure that the Chief, Emergency Management Ontario has, at any time, the most current version of their emergency plans.
Repository for emergency plans
(2) The Chief, Emergency Management Ontario shall keep in a secure place the most current version of every emergency plan submitted to him or her.
11. The Act is amended by adding the following section:
Temporary suspension of legislative provisions
in emergency
7.1 (1) If the conditions set out in subsection (2) are satisfied, the Lieutenant Governor in Council may, by order in council made on the recommendation of the Attorney General, temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government of Ontario.
Conditions
(2) The conditions referred to in subsection (1) are:
1. An emergency exists, whether or not it has been declared to exist.
2. The provision,
i. establishes a limitation period,
ii. provides for benefits or compensation payable as a result of the emergency,
iii. requires that something be proved or supplied before benefits or compensation become available, or
iv. requires the payment of fees in respect of court proceedings or in connection with anything done in the administration of justice.
3. In the opinion of the Lieutenant Governor in Council, temporarily suspending the operation of the provision would facilitate providing assistance to victims of the emergency or would otherwise help victims and other members of the public to deal with the emergency and its aftermath.
Commencement
(3) The order in council may, if it so provides,
(a) come into force on the day it is issued; or
(b) have retroactive effect to a date no earlier than the beginning of the emergency.
Notice
(4) Subsection 5 (3) of the Regulations Act does not apply to the order in council, but the Lieutenant Governor in Council shall take steps to publish the order in council in order to bring it to the attention of affected persons pending publication under the Regulations Act.
Maximum period of temporary suspension
(5) The period of temporary suspension shall not exceed 90 days.
General or specific
(6) The order in council may be general or specific in its application.
Conflict
(7) In the event of conflict, the order in council prevails over the statute, regulation, rule, by-law or order to which the temporary suspension relates.
Effect of temporary suspension: limitation period
(8) If a provision establishing a limitation period is temporarily suspended by the order in council, the limitation period resumes running on the date on which the temporary suspension ends and the temporary suspension period shall not be counted.
Effect of temporary suspension: fee
(9) If a provision requiring the payment of a fee is temporarily suspended by the order in council, no fee is payable at any time with respect to things done during the temporary suspension period.
12. The Act is amended by adding the following section:
Other emergency plans
8.1 The Solicitor General may, if he or she thinks it is necessary or desirable in the interests of emergency management and public safety, formulate emergency plans respecting types of emergencies other than those arising in connection with nuclear facilities.
13. (1) Section 9 of the Act is amended by striking out "An emergency plan may" at the beginning and substituting "An emergency plan formulated under section 3, 6 or 8 shall".
(2) Section 9 of the Act is amended by striking out "and" at the end of clause (e) and by adding the following clause:
(e.1) provide for any other matter required by the standards for emergency plans set under section 14; and
. . . . .
14. Subsection 11 (1) of the Act is repealed and the following substituted:
Protection from personal liability
(1) No action or other proceeding lies or shall be instituted against a member of council, an employee of a municipality, a minister of the Crown or a Crown employee for doing any act or neglecting to do any act in good faith in the implementation or intended implementation of an emergency management program or an emergency plan or in connection with an emergency.
15. Subsection 13 (1) of the Act is amended by striking out "the formulation and implementation of emergency plans" at the end and substituting "the development and implementation of emergency management programs and the formulation and implementation of emergency plans".
16. Section 14 of the Act is repealed and the following substituted:
Standards for emergency management programs and
emergency plans
14. (1) The Solicitor General may make regulations setting standards for the development and implementation of emergency management programs under sections 2.1 and 5.1 and for the formulation and implementation of emergency plans under sections 3 and 6.
General or particular
(2) A regulation made under subsection (1) may be general or particular in its application.
Conformity to standards required
(3) Every municipality, minister of the Crown and designated agency, board, commission and other branch of government shall ensure that their emergency management programs and emergency plans conform to the standards set under this section.
Commencement and Short Title
Commencement
17. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.
Same
(2) Sections 2 to 16 come into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
18. The short title of this Act is the Emergency Readiness Act, 2002.
SCHEDULE
DECLARATIONS OF DEATH ACT, 2002
Definition
1. In this Act,
"interested person" means any person who is or would be affected by an order declaring that an individual is dead, including,
(a) a person named as executor or estate trustee in the individual's will,
(b) a person who may be entitled to apply to be appointed administrator of the individual's estate on intestacy,
(c) the individual's spouse,
(d) the individual's next of kin,
(e) the individual's guardian or attorney for personal care or property under the Substitute Decisions Act, 1992,
(f) a person who is in possession of property owned by the individual,
(g) if there is a contract of life insurance or group insurance insuring the individual's life,
(i) the insurer, and
(ii) any potential claimant under the contract, and
(h) if the individual has been declared an absentee under the Absentees Act, the committee of his or her estate.
Order re declaration of death
2. (1) An interested person may apply to the Superior Court of Justice, with notice to any other interested persons of whom the applicant is aware, for an order under subsection (3).
Notice
(2) Notice under subsection (1),
(a) if given by or to an insurer, shall be given at least 30 days before the application to court is made;
(b) if not given by or to an insurer, shall be given as provided by the rules of court.
Power of court
(3) The court may make an order declaring that an individual has died if the court is satisfied that either subsection (4) or (5) applies.
Disappearance in circumstances of peril
(4) This subsection applies if,
(a) the individual has disappeared in circumstances of peril;
(b) the applicant has not heard of or from the individual since the disappearance;
(c) to the applicant's knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;
(d) the applicant has no reason to believe that the individual is alive; and
(e) there is sufficient evidence to find that the individual is dead.
Seven-year absence
(5) This subsection applies if,
(a) the individual has been absent for at least seven years;
(b) the applicant has not heard of or from the individual during the seven-year period;
(c) to the applicant's knowledge, after making reasonable inquiries, no other person has heard of or from the individual during the seven-year period;
(d) the applicant has no reason to believe that the individual is alive; and
(e) there is sufficient evidence to find that the individual is dead.
Scope of order
(6) The declaration of death applies for all purposes unless the court,
(a) determines that it should apply only for certain purposes; and
(b) specifies those purposes in the order.
Same
(7) The declaration of death is not binding on an interested person who did not have notice of the application.
Date of death
(8) The order shall state the date of death, which shall be,
(a) the date upon which the evidence suggests the person died, if subsection (4) applies; or
(b) the date of the application, if subsection (5) applies.
Same
(9) The order may state a date of death other than that required by subsection (8) if the court is of the opinion that it would be just to do so in the circumstances and that it would not cause inconvenience or hardship to any of the interested persons.
Order as evidence
(10) Despite any other Act, the order or a copy certified by the court is proof of the individual's death for the purposes for which it applies under subsection (6).
Order under Absentees Act
3. If, on an application under section 2, the court is not satisfied that there is sufficient evidence to justify an order declaring an individual to be dead, the court may make an order under the Absentees Act.
Motion to amend, confirm
or revoke order
4. (1) An interested person may, with notice to any other interested persons of whom the person making the motion is aware, move for an order amending, confirming or revoking an order made under section 2 if the person making the motion did not have notice of the application to make the order.
Same
(2) An interested person may, with leave of the court and with notice to any other interested persons of whom the person making the motion is aware, move for an order amending, confirming or revoking an order made under section 2 if new evidence or a change in circumstances justify reconsidering the matter.
Amendment re scope
(3) An interested person may, with leave of the court and with notice to any other interested persons of whom the person making the motion is aware, move for an order modifying the scope of an order made under section 2.
Motion re order under this section
(4) An interested person may also make a motion under subsection (1), (2) or (3) in respect of an order previously made under this section.
Notice
(5) Notice under subsection (1), (2) or (3),
(a) if given by or to an insurer, shall be given at least 30 days before the motion is made;
(b) if not given by or to an insurer, shall be given as provided by the rules of court.
Power of court
(6) The court may make an order confirming, amending or revoking the order and subsections 2 (3), (4), (5), (6), (7), (8), (9) and (10) and section 3 apply, with necessary modifications, to an order made under this section.
Preservation or return of property
(7) If the court amends or revokes the order, it may also make any order it considers appropriate for the preservation or return of property, including an order under subsection 6 (3).
References to s. 2 orders
(8) A reference in another section of this Act or in any other Act to an order made under section 2 shall be deemed to include an order made under this section.
Duty of personal representative
5. If an order that applies for the purpose of dealing with an individual's estate has been made under section 2 but the individual's personal representative has reasonable grounds to believe that the individual is not in fact dead, the personal representative shall take no further steps to administer the estate unless the death is confirmed by an order made under section 4.
Effect of distribution if individual in fact alive
6. (1) Subject to subsections (2), (3), (5) and (6), if an order that applies for the purpose of dealing with an individual's estate has been made under section 2 and all or part of the estate has been distributed accordingly, the distribution is final even if the individual is afterwards discovered to be alive, and the individual is not entitled to recover the distributed property.
Exception
(2) Subsection (1) does not apply in respect of a distribution that is made when section 5 applies.
Power of court
(3) In the circumstances described in subsection (1), the court may, if it is of the opinion that it would be just to do so, make an order requiring a person to whom property was distributed to reconvey all or part of it to the individual or to pay a specified amount to the individual.
Matters to be considered
(4) In deciding whether to make an order under subsection (3), the court shall consider all the circumstances, including any inconvenience or hardship to the person subject to the order.
Effect of reconveyance
(5) Property that is reconveyed under an order made under subsection (3) shall be deemed not to have been distributed.
Same, payment
(6) Money that is paid under an order made under subsection (3) shall be deemed to have been the individual's property before the distribution.
Undistributed property
(7) Property that has not been distributed when the individual is discovered to be alive,
(a) remains the individual's property;
(b) is held in trust under the Trustee Act; and
(c) shall be returned as the court directs.
Payment, distribution under order discharges duty
7. A payment of money or distribution of property made pursuant to an order made under this Act discharges the person who made the payment or distribution to the extent of the amount paid or the value of the property distributed.
Appeals
8. Any interested person may appeal an order made under this Act to the Divisional Court.
Courts of Justice Act amended
9. Paragraph 1 of the Schedule to section 21.8 of the Courts of Justice Act, as enacted by the Statutes of Ontario, 1994, chapter 12, section 8 and amended by 1996, chapter 31, section 65 and 2000, chapter 33, section 20, is amended by striking out "Marriage Act, sections 6 and 9" and substituting "Marriage Act, section 6".
Insurance Act amended
10. Section 203 of the Insurance Act is amended by adding the following subsections:
Order under
Declarations of Death Act, 2002
(2) Despite sections 208 and 209, an order made under the Declarations of Death Act, 2002 that declares that an individual has died is sufficient evidence of death for the purpose of clause (1) (a) if the insurer had notice of the application.
Exception
(3) Subsection (2) does not apply if the order is limited, under subsection 2 (6) of the Declarations of Death Act, 2002, to specified purposes other than the payment of insurance money.
Marriage Act amended
11. Section 9 of the Marriage Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule D, section 10, is repealed and the following substituted:
Order under
Declarations of Death Act, 2002
9. (1) If an order has been made under the Declarations of Death Act, 2002 declaring that a married person's spouse has died, the married person may, subject to the provisions of this Act, obtain a licence or be married under the authority of the publication of banns upon depositing a certified copy of the order with the person issuing the licence or solemnizing the marriage together with an affidavit in the required form.
Exception
(2) Subsection (1) does not apply if the order is limited, under subsection 2 (6) of the Declarations of Death Act, 2002, to specified purposes other than remarriage.
Registry Act amended
12. Subclause 53 (1) (a) (iii) of the Registry Act, as re-enacted by the Statutes of Ontario, 1999, chapter 12, Schedule F, section 37 and amended by 2000, chapter 26, Schedule B, section 17, is amended by adding the following paragraphs:
4. An order made under the Declarations of Death Act, 2002 that declares that the testator has died and that is not limited under subsection 2 (6) of that Act to specified purposes other than dealing with the testator's estate.
5. A certified or notarial copy of an order described in paragraph 4;
Commencement
13. The Act set out in this Schedule comes into force on the day the Emergency Readiness Act, 2002 receives Royal Assent.
Short title
14. The short title of the Act set out in this Schedule is the Declarations of Death Act, 2002.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 148 and does not form part of the law. Bill 148 has been enacted as Chapter 14 of the Statutes of Ontario, 2002.
The Bill enacts the Declarations of Death Act, 2002 and amends the Emergency Plans Act.
DECLARATIONS OF DEATH ACT, 2002
The proposed Act provides a new process for obtaining a court order declaring that a person is dead, in circumstances where no physical evidence is available but it is reasonable to presume death. The proposed Act will allow a single application to be brought for all legal purposes. Currently it is necessary to bring separate court proceedings for different purposes such as probating a will, claiming life insurance proceeds or permitting a surviving spouse to remarry.
Consequential amendments are made to the Courts of Justice Act, the Insurance Act, the Marriage Act and the Registry Act.
AMENDMENTS TO THE
EMERGENCY PLANS ACT
The Bill changes the name of the Emergency Plans Act to the Emergency Management Act and amends the Act as follows:
1. It requires municipalities, ministers of the Crown and designated agencies, boards, commissions and other branches of government to develop and implement emergency management programs, consisting of emergency plans, training programs and exercises, public education and any other element prescribed by regulation. The development of emergency management programs must involve the identification and assessment of the various risks and hazards to public safety that could give rise to emergencies and the identification of facilities and other elements of the infrastructure at risk from emergencies.
2. Municipalities, ministers of the Crown and designated agencies, boards, commissions and other branches of government are required to conduct training programs and exercises to ensure their readiness to act under their emergency plans. They are also required to review and, if necessary, revise their emergency plans annually.
3. The current Act permits municipalities to formulate emergency plans. The amendments to the Act make it mandatory that every municipality formulate an emergency plan. Section 9 of the current Act sets out the features that may be included in an emergency plan. The amendments to the Act make these features mandatory elements of emergency plans.
4. The title of the Director, Emergency Measures Ontario is changed to Chief, Emergency Management Ontario. Under the current Act, the Director is responsible for monitoring, co-ordinating and assisting in the formulation and implementation of emergency plans. The amendments make the Chief responsible for these functions in respect of emergency management programs. In addition, all emergency plans are to be submitted to the Chief for safe-keeping.
5. The Lieutenant Governor in Council is empowered, on the recommendation of the Attorney General, to temporarily suspend the operation of a provision of a provincial statute, regulation, rule, by-law or order to facilitate providing assistance to victims of an emergency or to help the victims and general public deal with the emergency and its aftermath. The temporary suspension may be imposed on provisions that establish limitation periods, provide for benefits or compensation payable as a result of the emergency or require the payment of court fees or fees for anything done in the administration of justice.
6. The current Act requires the Lieutenant Governor in Council to formulate an emergency plan respecting nuclear emergencies. The Bill gives the Solicitor General the power to formulate emergency plans respecting other types of emergencies.