[38] Bill 138 Original (PDF)

Bill 138 2004

An Act to amend the
Emergency Management Act
and the Employment
Standards Act, 2000

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Emergency Management Act

1.  The title of the Emergency Management Act is repealed and the following substituted:

Emergency Management
and Civil Protection Act

2.  The definition of "emergency" in section 1 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule P, section 3, is repealed and the following substituted:

"emergency" means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise; ("situation d'urgence")

3.  The Act is amended by adding the following section:

Cabinet advisory committee

2.0.1  The Lieutenant Governor in Council may appoint, from among the members of the Executive Council, a committee to advise the Lieutenant Governor in Council on matters relating to emergencies.

4.  Section 7 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule P, section 5, is repealed and the following substituted:

Definitions

7.  In sections 7.0.1 to 7.0.12,

"Commissioner of Emergency Management" means the person appointed by the Lieutenant Governor in Council as the Chief, Emergency Management Ontario pursuant to section 6.1; ("commissaire à la gestion des situations d'urgence")

"municipality" includes a local board of a municipality and a local services board; ("municipalité")

"necessary goods, services and resources" includes food, water, electricity, fossil fuels, clothing, equipment, transportation and medical services and supplies. ("denrées, services et ressources nécessaires")

Declaration of emergency

7.0.1  (1)  Subject to subsection (3), the Lieutenant Governor in Council or the Premier, if in the Premier's opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario.

Confirmation of urgent declaration

(2)  An order of the Premier, that declares an emergency, is terminated after 72 hours unless the order is confirmed by order of the Lieutenant Governor in Council before it terminates.

Criteria for declaration

(3)  An order declaring that an emergency exists throughout Ontario or any part of it may be made under this section if there is an emergency that is such that,

(a) it requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property; and

(b) the action cannot be undertaken using the resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government.

Emergency powers and orders

Purpose

7.0.2  (1)  The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies and to do so in a manner that respects the rights of individuals.

Criteria for emergency orders

(2)  If an emergency is declared under section 7.0.1, the Lieutenant Governor in Council may make such orders as the Lieutenant Governor in Council considers necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property,

(a) if the harm or damage will be alleviated by the order; and

(b) if there is no reasonable alternative to the order.

Limitations on emergency order

(3)  Orders made under this section are subject to the following limitations:

1. The actions authorized by an order shall be exercised in a manner which limits their intrusiveness.

2. An order shall only apply to the areas of the Province where it is necessary.

3. Subject to section 7.0.9, an order shall be effective only for as long as is necessary.

Emergency orders

(4)  In accordance with subsection (2) and subject to the limitations in subsection (3), the Lieutenant Governor in Council may make orders in respect of the following:

1. The implementation of any emergency plans formulated under section 3, 6, 8 or 8.1.

2. The regulation or prohibition of travel to, from or within any specified area.

3. The evacuation of individuals and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of individuals and property.

4. The establishment of facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals.

5. The closure of any place, whether public or private, including any business, office, school, hospital or other establishment or institution.

6. To prevent, respond to or alleviate the effects of the emergency, the construction of works, the restoration of necessary facilities and the requisition, use, destruction, removal or disposition of property.

7. The use of any necessary goods, services and resources within any part of Ontario.

8. The procurement of necessary goods, services and resources, the distribution, availability and use of necessary goods, services and resources and the establishment of centres for their distribution.

9. The fixing of prices for necessary goods, services and resources and the prohibition against charging higher prices in respect of necessary goods, services and resources than the fair market value of the necessary goods, services or resources immediately before the emergency.

10. The authorization of any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.

11. Subject to subsection (9), the requirement that any person disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.

12. Consistent with the powers authorized in this subsection, the taking of such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.

Powers of the Premier

(5)  If an order is made under section 7.0.1,

(a) the Premier may exercise any power or perform any duty conferred upon a minister of the Crown or a Crown employee by or under an Act of the Legislature;

(b) if the emergency area or any part of it is within the jurisdiction of a municipality, the Premier may, where he or she considers it necessary, direct and control the administration, facilities and equipment of the municipality in the emergency area, and, without restricting the generality of the foregoing, the exercise by the municipality of its powers and duties in the emergency area, whether under an emergency plan or otherwise, is subject to the direction and control of the Premier; and

(c) the Premier may require any municipality to provide such assistance as he or she considers necessary to an emergency area or any part of the emergency area that is not within the jurisdiction of the municipality, and may direct and control the provision of such assistance.

By-law not necessary

(6)  Despite subsection 5 (3) of the Municipal Act, 2001, a municipality is authorized to exercise a municipal power in response to a direction or requirement of the Premier or his or her delegate issued under subsection (5) without a by-law.

Terms and conditions for services

(7)  An order under paragraph 10 of subsection (4) may provide for terms and conditions of service for persons providing and receiving services under that paragraph, including the payment of compensation to the person providing services.

Employment protected

(8)  The employment of a person providing services under paragraph 10 of subsection (4) to render services shall not be terminated by reason only that the person is required to provide those services.

Disclosure of information

(9)  The following rules apply with respect to an order under paragraph 11 of subsection (4):

1. An order prevails over any other Act or regulation.

2. Information that is subject to the order must be used to prevent, respond to or alleviate the effects of the emergency and for no other purpose.

3. Information that is subject to the order that is personal information within the meaning of the Freedom of Information and Protection of Privacy Act shall be destroyed as soon as is practicable after the emergency is terminated.

Exception

(10)  Paragraph 3 of subsection (9) does not prohibit the use of data that is collected as a result of an order to disclose information under paragraph 11 of subsection (4) for research purposes if,

(a) information that could be used to identify a specific individual is removed from the data; or

(b) the individual to whom the information relates consents to its use.

Delegation of powers

7.0.3  (1)  After an order has been made under section 7.0.1, the Lieutenant Governor in Council may delegate to a minister of the Crown or to the Commissioner of Emergency Management any of the powers of the Lieutenant Governor in Council under subsection 7.0.2 (4) and the Premier may delegate to a minister of the Crown or to the Commissioner of Emergency Management any of the Premier's powers under subsection 7.0.2 (5).

Same

(2)  A minister to whom powers have been delegated under subsection (1) may delegate any of his or her powers under subsections 7.0.2 (4) and (5) to the Commissioner of Emergency Management.

When orders take effect

7.0.4  (1)  Orders under sections 7.0.1 and 7.0.2 take effect immediately upon their making.

Retroactive effect

(2)  Despite subsection (1),

(a) an order made under paragraph 5 of subsection 7.0.2 (4) may have retroactive effect to a date no earlier than the day the emergency to which the order relates is declared; and

(b) an order made under paragraph 6 of subsection 7.0.2 (4) may have retroactive effect to the beginning of the emergency to which the order relates.

Publication of orders

(3)  The Lieutenant Governor in Council, the Premier, the minister or the Commissioner of Emergency Management, as the case may be, shall take all steps reasonably possible to bring orders under sections 7.0.1 and 7.0.2 to the attention of affected persons as soon as possible pending their publication under the Regulations Act.

Orders effective before publication

(4)  Despite subsection 5 (3) of the Regulations Act, orders under sections 7.0.1 and 7.0.2 are effective against any person even though they have not been published in The Ontario Gazette.

General or specific

7.0.5  An order under section 7.0.1 or 7.0.2 may be general or specific in its application.

Conflict with legislative instruments

7.0.6  (1)  In the event of a conflict between an order made under section 7.0.2 and any statute, regulation, rule, by-law or order, the order under section 7.0.2 prevails.

Limitation

(2)  Nothing in this Act shall be construed or applied so as to confer any power to make orders altering the provisions of this Act.

Same

(3)  Nothing in this Act affects the rights of a person to bring an application for the judicial review of any act or failure to act under this Act.

Preservation of duties and rights

(4)  Despite subsection (1), nothing in this Act or in an order made under it abrogates any duties that are imposed and rights that are provided under the Occupational Health and Safety Act.

Reports during an emergency

7.0.7  During an emergency, the Premier, or a Minister to whom the Premier delegates the responsibility, shall regularly report to the public with respect to the emergency.

Termination of emergency

7.0.8  (1)  Subject to this section, an emergency declared under section 7.0.1 is terminated at the end of the 14th day following its declaration unless the Lieutenant Governor in Council by order declares it to be terminated at an earlier date.

Extension of emergency, L.G. in C.

(2)  The Lieutenant Governor in Council may by order extend an emergency before it is terminated for one further period of no more than 14 days.

Extension of emergency, Assembly

(3)  The Assembly, on the recommendation of the Premier, may by resolution extend the period of an emergency for additional periods of no more than 28 days.

Same

(4)  If there is a resolution before the Assembly to extend the period of the emergency, the emergency shall continue until the resolution is voted on.

Revocation of orders

7.0.9  (1)  Subject to this section, an order made under subsection 7.0.2 (4) is revoked 14 days after it is made unless it is revoked sooner.

Commissioner's orders

(2)  An order of the Commissioner of Emergency Management made under subsection 7.0.2 (4) is revoked at the end of the second full day following its making unless it is confirmed before that time by order of the Lieutenant Governor in Council, the Premier or the Minister who delegated the power to make the order.

Extension of orders, L.G. in C., etc.

(3)  During a declared emergency, the Lieutenant Governor in Council or a Minister to whom the power has been delegated may by order, before it is revoked, extend the effective period of an order made under subsection 7.0.2 (4) for periods of no more than 14 days.

Extension of order after emergency

(4)  Despite the termination of the emergency, the Lieutenant Governor in Council may by order extend the effective period of an order made under subsection 7.0.2 (4) for periods of no more than 14 days where the extension of the order is necessary to deal with the effects of the emergency.

Disallowance of emergency by Assembly

7.0.10  (1)  Despite section 7.0.8, the Assembly may by resolution disallow the declaration of a state of emergency under section 7.0.1 or the extension of an emergency.

Same

(2)  If the Assembly passes a resolution disallowing the declaration of a state of emergency or the extension of one, any order made under subsection 7.0.2 (4) is revoked as of the day the resolution passes.

Report on emergency

7.0.11  (1)  The Premier shall table a report in respect of the emergency in the Assembly within 120 days after the termination of an emergency declared under section 7.0.1 and, if the Assembly is not then in session, the Premier shall table the report within seven days of the Assembly reconvening.

Content of report

(2)  The report of the Premier shall include information in respect of making any orders under subsection 7.0.2 (4) and an explanation of how the order met the criteria for making an order under subsection 7.0.2 (2) and how the order satisfied the limitations set out in subsection 7.0.2 (3).

Consideration of report

(3)  The Speaker of the Assembly shall call the report for consideration by the Assembly within five sitting days of the report being tabled.

Commissioner's report

(4)  If the Commissioner of Emergency Management makes any orders under subsection 7.0.2 (4), he or she shall, within 120 days after the termination of an emergency declared under subsection 7.0.1 (1), make a report to the Premier in respect of the orders and the Premier shall include it in the report required by subsection (1).

Offences

7.0.12  (1)  Every person who fails to comply with an order under subsection 7.0.2 (4) or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by an order under that subsection is guilty of an offence and is liable on conviction,

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

Separate offence

(2)  A person is guilty of a separate offence on each day that an offence under subsection (1) occurs or continues.

Increased penalty

(3)  Despite the maximum fines set out in subsection (1), the court that convicts a person of an offence may increase a fine imposed on the person by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence.

5.  Paragraph 1 of subsection 7.1 (2.1) of the Act, as enacted by the Statutes of Ontario, 2003, chapter 1, section 14, is repealed and the following substituted:

1. A declaration has been made under section 7.0.1.

6.  Section 11 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule P, section 7 and 2002, chapter 14, section 14, is repealed and the following substituted:

Protection from liability

11.  (1)  No person designated under subsection (3) is liable for any act done in good faith in the exercise or performance or the intended exercise or performance of any power or duty under this Act or under an order made under this Act or for any neglect or default in the exercise or performance in good faith of such power or duty.

Bad faith or gross negligence

(2)  Despite subsection (1), a person described in subsection (3) is liable for an act done in the exercise or performance or the intended exercise or performance of any power or duty under this Act or under an order made under this Act or for any neglect or default in the exercise or performance of such power or duty where a claim of bad faith or gross negligence is proven.

Designated persons

(3)  The following persons are designated for the purposes of subsections (1) and (2):

1. Ministers of the Crown.

2. Crown employees.

3. Members of municipal councils and local boards of municipalities.

4. Employees of municipalities and local boards of municipalities.

5. Persons acting under an order under subsection 7.0.2 (4).

6. Persons acting under a direction or requirement made under subsection 7.0.2 (5).

Crown liability

(4)  Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of liability in respect of a tort committed by a person to whom subsection (1) applies to which it would otherwise be subject.

7.  The Act is amended by adding the following section:

Compensation, general

13.1  (1)  The Lieutenant Governor in Council may authorize the payment of the cost of providing any assistance that arises under this Act or as the result of an emergency out of funds appropriated by the Assembly.

Compensation, individual loss of property

(2)  If, as the result of making an order under subsection 7.0.2 (4), a person suffers the loss of any real or personal property, the Lieutenant Governor in Council may by order authorize the reasonable compensation to the person for the loss in accordance with such guidelines as may be approved by the Lieutenant Governor in Council.

8.  The Act is amended by adding the following section:

Crown bound

15.  This Act binds the Crown.

Employment Standards Act, 2000

9.  The Employment Standards Act, 2000 is amended by adding the following section:

Emergency leave, declared emergencies

50.1  (1)  An employee is entitled to a leave of absence without pay if the employee is unable to attend his or her employment because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and either an order made under section 7.0.2 of that Act or an order made under Part IV of the Health Protection and Promotion Act.

Advising employer

(2)  An employee who must take a leave under this section shall advise his or her employer that he or she will be doing so.

Same

(3)  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.

Limit

(4)  An employee is entitled to take a leave under this section for as long as he or she is unable to attend his or her employment because of the declared emergency under the Emergency Management and Civil Protection Act and either an order made under that Act or an order made under Part IV of the Health Protection and Promotion Act.

Evidence

(5)  An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

Commencement

10.  This Act comes into force on the day it receives Royal Assent.

Short title

11.  The short title of this Act is the Emergency Management Statute Law Amendment Act, 2004.

EXPLANATORY NOTE

This Bill is being introduced in the Legislative Assembly under the Order of Reference dated Tuesday, June 29, 2004. It is presented to the Assembly by the Acting Chair of the Standing Committee on Justice Policy, Mike Colle, who is the primary sponsor of the Bill. The following members and properly substituted members of the Committee are its secondary sponsors: Wayne Arthurs, Laurel C. Broten, Jim Brownell, Shafiq Qaadri, Liz Sandals, John Wilkinson and David Zimmer.

The Bill amends the Emergency Management Act and makes a concomitant amendment to the Employment Standards Act, 2000.

The Bill changes the name of the Emergency Management Act to the Emergency Management and Civil Protection Act (section 1 of the Bill), amends the definition of emergency to include dangers caused by disease or health risk (section 2 of the Bill) and permits the establishment of a Cabinet Committee to advise the Cabinet on matters relating to emergencies (section 3 of the Bill).

The primary purpose of the Bill is to provide emergency powers to the Lieutenant Governor in Council and to the Premier to deal with emergencies. These are dealt with in section 4 of the Bill, re-enacting section 7 of the Act and adding sections 7.0.1 to 7.0.12 to the Act.

The Bill provides that an emergency may be declared where an emergency exists that is such that it requires immediate action to prevent, reduce or mitigate a danger of major proportions and the action cannot be undertaken using the resources normally available to the Government of Ontario (section 7.0.1 of the Act).

The purpose of the power to make emergency orders is to promote the public good by protecting the health, safety and welfare of the people of Ontario and to do so in a manner that respects the rights of individuals. Emergency orders may be made where they are necessary and essential and if harm or damage will be alleviated by the order and there is no reasonable alternative to the order. Limitations are placed on emergency orders: actions taken under orders shall be exercised in a manner that limits their intrusiveness and orders shall only apply in the areas of the Province where they are necessary and can only be effective for as long as is necessary.

Orders may be made in respect of many matters, including the regulation or prohibition of travel to or from a specified area, the evacuation of persons and the removal of personal property from a specified area, the establishment of facilities for the care, welfare, safety and shelter of individuals, the construction of works and the restoration of necessary facilities, the procurement of necessary goods, services and resources, the fixing of prices for necessary goods, services and resources and the prohibition against charging higher prices for such goods, services and resources, the authorization of any person to render services of a type the person is qualified to render and the requirement to disclose necessary information. This is all set out in section 7.0.2 of the Act.

The powers of the Premier to act set out in the current subsections 7 (2) to (4) of the Act are continued in section 7.0.2.

The power to make orders may be delegated to a minister of the Crown or to the Commissioner of Emergency Management (section 7.0.3). Where the Commissioner exercises the delegated power to make an order, the order is revoked within two days unless it is confirmed by the Lieutenant Governor in Council, the Premier or the Minister who delegated the power to make the order (subsection 7.0.9 (2)).

Generally, orders are effective as of when they are made (subsection 7.0.4 (1)) and are effective for 14 days and, during an emergency, may be renewed for 14-day periods (section 7.0.9).

If there is a conflict between an order and any statute, regulation, rule, by-law or order, the order prevails. The rights of a person to bring an application for judicial review are preserved. Neither the Act nor an order abrogates any duties that are imposed or rights that are provided under the Occupational Health and Safety Act (section 7.0.6).

During an emergency, the Premier, or a minister to whom the responsibility is delegated, must report to the public on the emergency (section 7.0.7).

Declared emergencies are terminated 14 days or earlier after the day they are declared but may be extended by the Lieutenant Governor in Council for one period of 14 days. The Assembly may extend emergencies for periods of up to 28 days (section 7.0.8).

The Assembly may by resolution disallow the declaration of a state of emergency (section 7.0.10). The Premier is required to report to the Assembly within 120 days after the termination of the emergency. The report must include information with respect to making orders and an explanation on how the order met the criteria for making an order and how the order satisfied the limitations on making an order (section 7.0.11).

Offences and penalties are set out in section 7.0.12. Failing to comply with an emergency order or interfering with a person acting under an emergency order are offences which carry a fine of up to $10,000,000 for corporations, $500,000 for corporate directors and officers and $100,000 for other persons. These fines may be further increased for convicted persons who profited financially from the offence. Individuals may be sentenced to imprisonment for up to one year.

The Bill replaces section 11 of the Act. At present, certain officials are exempt from all liability. Under the new section 11, those previously covered will be exempt from liability unless bad faith or gross negligence is proven. Persons who are required to provide services will also be protected. Crown liability is preserved.

The Crown will be bound by the Act.

The Employment Standards Act, 2000 is amended by adding a section that provides that an employee is entitled to leave where he or she is unable to attend their employment because of an emergency declared under the Emergency Management and Civil Protection Act and either an order made under it or an order under Part IV of the Health Protection and Promotion Act.