[37] Bill 1 Royal Assent (PDF)
Bill 1 2003
An Act to protect jobs,
promote economic growth
and to address the challenge of
SARS in Ontario
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
SARS EMERGENCY LEAVE
Interpretation
1. (1) In this Part,
"applicable period" means the period beginning March 26, 2003 and ending on a day to be named by proclamation of the Lieutenant Governor under subsection (2); ("période applicable")
"board of health" has the same meaning as in the Health Protection and Promotion Act; ("conseil de santé")
"Chief Medical Officer of Health" means the person appointed as such under the Health Protection and Promotion Act; ("médecin-hygiéniste en chef")
"Commissioner of Public Health" means the person appointed as such by order in council; ("commissaire à la santé publique")
"Commissioner of Public Security" means the person appointed as such by order in council; ("commissaire à la sécurité publique")
"employee" means an employee as defined in subsection 1 (1) of the Employment Standards Act, 2000 and a dependent contractor as defined in subsection 1 (1) of the Labour Relations Act, 1995; ("employé")
"employer" means an employer as defined in subsection 1 (1) of the Employment Standards Act, 2000 and a person who contracts for the services of a dependent contractor as defined in subsection 1 (1) of the Labour Relations Act, 1995; ("employeur")
"employment contract" includes a collective agreement; ("contrat de travail")
"public health official" means the Commissioner of Public Health, the Chief Medical Officer of Health, an employee of a board of health or a public health official of the Government of Canada; ("fonctionnaire de la santé publique")
"SARS" means severe acute respiratory syndrome. ("SRAS")
Applicable period
(2) The Lieutenant Governor shall by proclamation name a day for the purposes of the applicable period defined in subsection (1).
Police officers and other non-employees
2. (1) Police officers and individuals prescribed under clause (2) (a) have, with necessary modifications, the same rights and obligations as employees have under this Part.
Regulations
(2) If the Lieutenant Governor in Council considers it advisable to do so, the Lieutenant Governor in Council may make regulations,
(a) prescribing individuals for the purposes of subsection (1);
(b) specifying such modifications as the Lieutenant Governor in Council considers necessary for the purposes of subsection (1).
Crown bound
3. This Part binds the Crown.
SARS leave supplementary to emergency leave
4. The entitlement to leave days under this Part is in addition to the entitlement to leave days under section 50 the Employment Standards Act, 2000.
Emergency leave before Part in force
5. (1) This section applies where an employee took a leave under section 50 of the Employment Standards Act, 2000 during the period beginning March 26, 2003 and ending on the day this Part comes into force and would have been entitled to take that leave under this Part had this Part been in force when the leave was taken.
Same
(2) The employee shall be deemed to have taken the leave under this Part instead of under section 50 of the Employment Standards Act, 2000.
SARS emergency leave
6. (1) During the period beginning March 26, 2003 and ending on a day specified by proclamation of the Lieutenant Governor under subsection 1 (2), an employee is entitled to a leave of absence without pay for any day or part of a day during which he or she falls into one or more of the following categories:
1. The employee is unable to work because he or she is under individual medical investigation, supervision or treatment related to SARS.
2. The employee is unable to work because he or she is acting in accordance with a SARS related order under section 22 or 35 of the Health Protection and Promotion Act.
3. Subject to subsections (2) to (4), the employee is unable to work because he or she is in quarantine or isolation or is subject to a control measure in accordance with SARS related information or directions issued to the public, a part of the public or one or more individuals, by the Commissioner of Public Security, a public health official, a physician or a nurse or by Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
4. The employee is unable to work because of a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to SARS.
5. The employee is unable to work because he or she is needed to provide care or assistance to an individual referred to in subsection (5) because of a SARS related matter that concerns that individual.
Same, paragraph 3
(2) An employee who is on a leave under paragraph 3 of subsection (1) shall, within two days, contact a public health official or a physician to receive directions as to whether he or she should continue to be absent from work for SARS related reasons and arrange to receive a written confirmation of those directions.
Same
(3) If an employee is already on a leave because of the circumstances set out in paragraph 3 of subsection (1) at the time that this Part comes into force, the two-day period referred to in subsection (2) begins on the day after the day on which this Part comes into force.
Same
(4) The employee is not entitled to continue on leave under paragraph 3 of subsection (1) after the two-day period referred to in subsection (2) or (3), as the case may be, unless the employee has complied with subsection (2) and the continuation is in accordance with the directions given by the public health official or physician.
Same, paragraph 5
(5) Paragraph 5 of subsection (1) applies with respect to the following individuals:
1. The employee's spouse or same-sex partner.
2. A parent, step-parent or foster parent of the employee, the employee's spouse or the employee's same-sex partner.
3. A child, step-child or foster child of the employee, the employee's spouse or the employee's same-sex partner.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee's spouse or same-sex partner.
5. The spouse or same-sex partner of a child of the employee.
6. The employee's brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.
Same
(6) The definitions of "parent", "same-sex partner" and "spouse" in section 45 of the Employment Standards Act, 2000 apply for the purposes of subsection (5).
Advising employer
(7) An employee who takes leave under this section shall advise his or her employer that he or she will be doing so.
Same
(8) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.
Evidence
(9) Subject to subsection (10), an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.
Same
(10) If the employer asks the employee to provide the written confirmation referred to in subsection (2), the employee need not provide it until his or her leave under this Part has ended.
Exclusions for lay-off purposes
(11) Any week in which an employee is absent for one or more days because of a leave taken under this Part is deemed to be an excluded week for the purposes of sections 56 and 63 of the Employment Standards Act, 2000.
Application of ss. 51, 51.1, 52,
Employment Standards Act, 2000
7. (1) Sections 51, 51.1 and 52 of the Employment Standards Act, 2000 apply with necessary modifications in relation to leaves taken under section 6.
Regulations
(2) If the Lieutenant Governor in Council considers it advisable to do so, the Lieutenant Governor in Council may make regulations specifying such modifications as the Lieutenant Governor in Council considers necessary for the purposes of subsection (1).
Reinstatement
8. (1) On the conclusion of an employee's leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
Same
(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.
Same
(3) This section does not limit an employer's right to terminate an employee's employment because the employer's business has been adversely affected because of SARS and as a result the size of its workforce has been reduced so that the employee's position was eliminated.
Wage rate
(4) The employer shall pay a reinstated employee at a rate that is equal to the greater of,
(a) the rate that the employee most recently earned with the employer; and
(b) the rate that the employee would be earning had he or she worked throughout the leave.
Reprisals, leave under this Part
9. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee,
(a) is or will become eligible to take a leave, intends to take a leave or takes a leave under this Part; or
(b) does anything described in subclauses 74 (1) (a) (i) to (vi) of the Employment Standards Act, 2000 in relation to a leave under this Part.
Same
(2) For the purposes of clause (1) (b), subclauses 74 (1) (a) (i) to (vi) of the Employment Standards Act, 2000 shall be read as if the references in those subclauses to that Act were references to this Part.
Onus of proof
(3) In any proceeding under this section, the burden of proof that an employer did not contravene a provision set out in this section lies on the employer.
Reprisals, leave before this Part
in force
10. (1) This section applies where,
(a) an employee took a leave during the period beginning March 26, 2003 and ending on the day this Part comes into force and would have been entitled to take that leave under this Part had this Part been in force when the leave was taken; and
(b) the employer or person acting on behalf of an employer dismissed the employee because the employee,
(i) took the leave described in clause (a), or
(ii) did or does anything described in subclauses 74 (1) (a) (i) to (vi) of the Employment Standards Act, 2000 in relation to that leave.
Same
(2) For the purposes of clause (1) (b), subclauses 74 (1) (a) (i) to (vi) of the Employment Standards Act, 2000 shall be read as if the references in those subclauses to that Act were references to this Part.
Onus of proof
(3) In any proceeding under this section, the burden of proof that an employer did not contravene a provision set out in this section lies on the employer.
Administration and enforcement of Part
11. (1) Sections 4, 5, 6, 7 and 8 and subsection 15 (7) of the Employment Standards Act, 2000, and Parts XX, XXI, XXII, XXIII, XXIV, XXV and XXVI of the Employment Standards Act, 2000 other than sections 113, 121, 122 and 130 of that Act, apply with necessary modifications to the application, administration and enforcement of this Part, as if this Part formed part of that Act.
Same
(2) Without limiting the generality of subsection (1), for the purposes of subsection (1), this Part shall be deemed to be a Part listed in the paragraphs following the opening sentence of subsection 104 (1) of the Employment Standards Act, 2000.
Retention of documents
(3) Without limiting the generality of subsection (1), for the purposes of subsection (1), subsection 15 (7) of the Employment Standards Act, 2000 shall be deemed to require the same document retention in relation to leave under this Part as is required in relation to emergency leave under section 50 of that Act.
Regulations
(4) If the Lieutenant Governor in Council considers it advisable to do so, the Lieutenant Governor in Council may make regulations specifying such modifications as the Lieutenant Governor in Council considers necessary for the purposes of subsection (1).
Exception, offences
(5) Despite subsection (1), a violation of a provision of this Part that occurs before the day on which this Part comes into force is not an offence.
Violation of s. 10
(6) If an employment standards officer finds a violation of section 10, the authority of the officer to order compensation under section 104 of the Employment Standards Act, 2000 is limited to compensation for losses that arise from the failure of the employer, on the later of the day on which this section comes into force and the day on which the employee was dismissed, to reinstate the employee.
Same
(7) Subsection (6) shall not be interpreted as limiting the authority of the officer to order reinstatement under section 104 of the Employment Standards Act, 2000, with or without compensation.
Same
(8) If the Ontario Labour Relations Board receives an application for review under section 116 of the Employment Standards Act, 2000 with respect to a matter under section 10, the Board has the same order-making authority as an employment standards officer has under subsections (6) and (7).
OLRB review
12. If the Ontario Labour Relations Board receives an application for review under section 116 of the Employment Standards Act, 2000 with respect to a matter under section 8, 9 or 10, the Board shall deal with the matter expeditiously.
PART II
HOTEL AND ENTERTAINMENT
TAX RELIEF
Hotels
13. (1) Subsection 2 (4) of the Retail Sales Tax Act does not apply to a purchaser to whom transient accommodation is provided beginning May 1, 2003 and ending September 30, 2003, both dates included.
Places of amusement
(2) Subsection 2 (5) of the Retail Sales Tax Act does not apply to a purchaser to whom admission to a place of amusement is provided beginning May 1, 2003 and ending September 30, 2003, both dates included.
PART III
AMENDMENTS TO THE
EMERGENCY MANAGEMENT ACT
14. (1) Subsections 7.1 (1) and (2) of the Emergency Management Act, as enacted by the Statutes of Ontario, 2002, chapter 14, section 11, are repealed and the following substituted:
Order in council in emergency
Purpose
(1) The purpose of this section is to authorize the Lieutenant Governor in Council to make appropriate orders when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario provides or may be prejudiced by the operation of the law of Ontario.
Order in council
(2) If the conditions set out in subsection (2.1) are satisfied, the Lieutenant Governor in Council may, by order in council made on the recommendation of the Attorney General, but only if the Lieutenant Governor in Council is of the opinion described in subsection (1),
(a) temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government of Ontario; and
(b) if it is appropriate to do so, set out a replacement provision to be in effect during the temporary suspension period only.
Conditions
(2.1) The conditions referred to in subsection (2) are:
1. A declaration has been made under subsection 7 (1).
2. The provision,
i. governs services, benefits or compensation, including,
A. fixing maximum amounts,
B. establishing eligibility requirements,
C. requiring that something be proved or supplied before services, benefits or compensation become available,
D. restricting how often a service or benefit may be provided or a payment may be made in a given time period,
E. restricting the duration of services, benefits or compensation or the time period during which they may be provided,
ii. establishes a limitation period or a period of time within which a step must be taken in a proceeding, or
iii. requires the payment of fees in respect of a proceeding or in connection with anything done in the administration of justice.
3. In the opinion of the Lieutenant Governor in Council, the order in council would facilitate providing assistance to victims of the emergency or would otherwise help victims or other persons to deal with the emergency and its aftermath.
(2) Subsection 7.1 (5) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 14, section 11, is repealed and the following substituted:
Maximum period, renewals and new orders in council
(5) The period of temporary suspension under an order in council shall not exceed 90 days, but the Lieutenant Governor in Council may,
(a) before the end of the period of temporary suspension, review the order in council and, if the conditions set out in subsection (2.1) continue to apply, make an order in council renewing the original order in council for a further period of temporary suspension not exceeding 90 days;
(b) at any time, make a new order in council under subsection (2) for a further period of temporary suspension not exceeding 90 days.
Further renewals
(5.1) An order in council that has previously been renewed under clause (5) (a) may be renewed again, and in that case clause (5) (a) applies with necessary modifications.
(3) Subsections 7.1 (8) and (9) of the Act, as enacted by the Statutes of Ontario, 2002, chapter 14, section 11, are repealed and the following substituted:
Effect of temporary suspension: time period
(8) If a provision establishing a limitation period or a period of time within which a step must be taken in a proceeding is temporarily suspended by the order in council and the order in council does not provide for a replacement limitation period or period of time, the limitation period or period of time 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 and the order in council does not provide for a replacement fee, no fee is payable at any time with respect to things done during the temporary suspension period.
Restriction
(10) This section does not authorize,
(a) making any reduction in respect of services, benefits or compensation;
(b) shortening a limitation period or a period of time within which a step must be taken in a proceeding; or
(c) increasing the amount of a fee.
PART IV
AMENDMENTS TO THE HEALTH PROTECTION AND PROMOTION ACT
15. (1) Section 22 of the Health Protection and Promotion Act, as amended by the Statutes of Ontario, 1996, chapter 2, section 67 and 1997, chapter 30, Schedule D, section 3, is amended by adding the following subsections:
Class orders
(5.0.1) An order under this section may be directed to a class of persons who reside or are present in the health unit served by the medical officer of health.
Notice to class
(5.0.2) If a class of persons is the subject of an order under subsection (5.0.1), notice of the order shall be delivered to each member of the class where it is practicable to do so in a reasonable amount of time.
Same, general notice
(5.0.3) If delivery of the notice to each member of a class of persons is likely to cause a delay that could, in the opinion of the medical officer of health, significantly increase the risk to the health of any person, the medical officer of health may deliver a general notice to the class through any communications media that seem appropriate to him or her, and he or she shall post the order at an address or at addresses that is or are most likely to bring the notice to the attention of the members of the class.
Information in notice
(5.0.4) A notice under subsection (5.0.3) shall contain sufficient information to allow members of the class to understand to whom the order is directed, the terms of the order, and where to direct inquiries.
Hearing for class member
(5.0.5) Where a class of persons is the subject of an order under subsection (5.0.1), any member of the class may apply to the Board for the purposes of requiring a hearing under section 44 respecting that member.
(2) Clause 35 (3) (a) of the Act is repealed and the following substituted:
(a) be taken into custody and be admitted to and detained in a hospital or other appropriate facility named in the order;
(3) Subsection 35 (4) of the Act is repealed and the following substituted:
Capability of hospital or facility
(4) The judge shall not name a hospital or other facility in an order under this section unless the court is satisfied that the hospital or other facility is able to provide detention, care and treatment for the person who is the subject of the order.
(4) Clause 35 (5) (b) of the Act is repealed and the following substituted:
(b) to deliver the person who is the subject of the order to the hospital or other facility named in the order.
(5) Subsection 35 (7) of the Act is amended by adding "or other facility" after "hospital".
(6) Subsections 35 (8) and (9) of the Act are repealed and the following substituted:
Physician responsible
(8) The person authorized by the by-laws of the hospital shall designate a physician to have responsibility for the care and treatment of the person named in the order or, where the by-laws do not provide the authorization, the administrator of the hospital or a person delegated by the administrator shall designate a physician to have responsibility for the care and treatment of the person named in the order.
Designation of physician
(8.1) Where a person who is the subject of an order is detained in a facility other than a hospital, the administrator of the facility shall designate a physician to have responsibility for care and treatment of the person named in the order.
Reports
(9) The physician responsible for a person under subsection (8) or (8.1) shall report in respect of the care and treatment of the person and their condition to the medical officer of health serving the health unit in which the hospital or other facility is located.
(7) Subsection 35 (11) of the Act is amended by adding "or other appropriate facility" after "hospital" wherever that word appears.
(8) Subsection 35 (12) of the Act is amended by adding "or other facility" after "hospital" wherever that word appears.
(9) Subsection 87 (2) of the Act is repealed and the following substituted:
Extension
(1.1) An order under subsection (1) shall set out an expiry date for the order that is not more than 12 months after the day of its making and the Minister may extend the order for a further period of not more than 12 months.
Grounds for order
(2) The Minister may make an order in writing under subsection (1) where the Chief Medical Officer of Health certifies to the Minister that,
(a) there exists or there is an immediate risk of an outbreak of a communicable disease anywhere in Ontario; and
(b) the premises are needed for use as a temporary isolation facility or as part of a temporary isolation facility in respect of the communicable disease.
(10) Subsection 87 (5) of the Act, as amended by the Statutes of Ontario, 2002, chapter 18, Schedule I, section 9, is amended by striking out "a warrant in the form prescribed by the regulations" in the portion after subclause (c) (iii) and substituting "an order"
(11) Clause 87 (5) (a) of the Act is repealed and the following substituted:
(a) that there has been or is an immediate risk of an outbreak of a communicable disease anywhere in Ontario;
(12) Subsection 87 (6) of the Act is repealed and the following substituted:
Execution of order
(6) An order made under this section shall be executed at reasonable times as specified in the order.
(13) Subsection 87 (7) of the Act is amended by striking out "a warrant" and substituting "an order".
(14) Subsection 87 (8) of the Act, as amended by the Statutes of Ontario, 1997, chapter 30, Schedule D, section 12, is repealed.
PART V
COMMENCEMENT AND SHORT TITLE
Commencement
16. This Act comes into force on the day it receives Royal Assent.
Short title
17. The short title of this Act is the SARS Assistance and Recovery Strategy Act, 2003.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 1 and does not form part of the law. Bill 1 has been enacted as Chapter 1 of the Statutes of Ontario, 2003.
Part I of the Bill
Part I of the Bill provides for job protection in relation to SARS related leaves by employees. The protection is also provided to police officers and other individuals as may be prescribed by regulation.
Part II of the Bill
Under Part II of the Bill, retail sales tax will not be charged for hotel or similar transient accommodation or on admissions to places of amusement for the five-month period of May to September, 2003.
Part III of the Bill
Section 7.1 of the Emergency Management Act is intended to give the Lieutenant Governor in Council power to make temporary orders to facilitate providing assistance to victims of an emergency or to help victims and other persons deal with the emergency and its aftermath. The Bill makes some adjustments to make the section more effective and to clarify the conditions under which the power can be used.
New subsection 7.1 (1) sets out the purpose of section 7.1: to authorize the Lieutenant Governor in Council to make appropriate orders when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or other persons affected by an emergency need greater services, benefits or compensation than the law of Ontario provides, or may be prejudiced by the operation of the law of Ontario.
Subsection 7.1 (2.1), the list of conditions that must be satisfied before an order can be made, is an expanded and clarified version of former subsection (2). The conditions are as follows:
1. There must be an emergency that has been declared under subsection 7 (1) of the Act.
2. The provision that is being temporarily suspended and possibly replaced must belong to one of the following categories:
i. It governs services, benefits or compensation. Examples of what such a provision might do are provided.
ii. It establishes a limitation period or a time period within which a step must be taken in a proceeding.
iii. It requires the payment of fees in respect of a proceeding or in connection with anything done in the administration of justice.
3. The Lieutenant Governor in Council must be of the opinion that the order would facilitate providing assistance to victims of the emergency or would otherwise help victims or other persons to deal with the emergency and its aftermath.
The new version of subsection 7.1 (5) clarifies that the 90-day maximum period may, in effect, be extended by the renewal or replacement of the order in council if the original conditions still apply. Subsection 7.1 (5.1) clarifies that further renewals are possible if the original conditions still apply.
New subsection 7.1 (10) clarifies that section 7.1 does not authorize,
(a) reductions in respect of services, benefits or compensation;
(b) the shortening of limitation periods or periods of time within which steps must be taken in proceedings; or
(c) fee increases.
Part IV of the Bill
At present, section 22 of the Health Protection and Promotion Act (HPPA) empowers a medical officer of health to make an order directed to a person respecting the control of a communicable disease, including an order requiring a person to isolate and conduct themself in a manner so as not to expose others to infection.
The proposed amendment will permit a medical officer of health to issue an order to "a class of persons" where the delay necessary to deliver the order to each class member is likely to substantially increase risk to the public health. In such cases, the medical officer of health may deliver a general notice to the class through the media and must post the order at an address or addresses that have some connection to the class.
The notice must have sufficient information to allow class members to understand to whom the order is directed, its terms and where to direct inquiries. Any member subject to a class order will have the same right to a hearing by the Health Services Appeal and Review Board as any other person who is the subject of an order.
At present, section 35 of the HPPA provides a medical officer of health with the right to apply to the court for an order requiring a person who has breached a section 22 order to be taken into custody, admitted to and detained in a hospital named in the order. The judge may also order that the person, if found on examination to be infected with a specified disease, be treated for the disease.
The proposed amendment will permit the court to name a hospital or other appropriate facility named in the order for the purposes of detaining a person who has failed to comply with a section 22 order.
Currently, section 87 of the HPPA provides the Minister with the power to order an occupier of any premises to deliver possession for use as a temporary isolation facility or as part of a temporary facility. The Minister may make such an order where a local medical officer of health certifies that there is an immediate risk of an outbreak of communicable disease in the area where the premises are located and that the premises are needed for use as an isolation facility.
The amendment provides that the Minister may make an order requiring the occupier of any premises to give up possession for use as a temporary isolation facility or as part of one for not more than 12 months, with the ability to extend the order for an additional 12 months.
In place of the local medical officer of health, under the amendment, the Chief Medical Officer of Health will certify to the Minister that there exists or that there is an immediate risk of an outbreak of a communicable disease anywhere in Ontario and the premises are needed for use as a temporary isolation facility or as part of one respecting the communicable disease.
Under existing provisions, where the occupier of the premises has refused to give up possession, is not likely to comply with the Minister's order or cannot be readily identified, a judge, being satisfied on evidence given under oath, may issue a warrant prescribed by the regulations and direct the sheriff or any other person who is suitable to assist the Minister in taking possession of the premises. Under the amendment, rather than issuing a warrant in the prescribed form, the court will simply issue an order.
Part V of the Bill
Part V of the Bill provides for the commencement and short title of the Bill.