Ombudsperson investigation finds two pandemic emergency orders not authorized by Emergency Program Act

Courtesy of the Office of the BC Ombudsperson:

Two ministerial orders made during the COVID-19 pandemic by BC’s Minister of Public Safety and Solicitor General went beyond the authority assigned to him under the Emergency Program Act and thus are contrary to law, an Ombudsperson investigation released today finds.

“In a provincial emergency the Solicitor General has additional extraordinary powers,” said BC Ombudsperson Jay Chalke. “The issue we investigated is whether those extra powers include the ability for the minister to suspend or temporarily amend BC statutes and we concluded the minister does not have that authority, even in an emergency. I recognize speed was important in responding to the pandemic however, while the intent and even the content of these orders may be worthy, that is not enough. Every exercise of public authority in a democratic system must find its source in law,” said Chalke.

The Ombudsperson’s report Extraordinary Times, Extraordinary Measures: Two ministerial orders made under the Emergency Program Act in response to the COVID-19 pandemic, is the result of an investigation into two ministerial orders that attempt to suspend or amend existing legislation:

• Ministerial Order MO98 suspends limitation periods and allows statutory decision-makers to waive, suspend or extend a mandatory time frame relating to their decision-making powers.
• Ministerial Order M139 exempted local governments from statutory requirements related to the conduct of meetings and public hearings and the passage of bylaws. The order also allowed local government meetings to be held without the public in attendance and allowed municipalities to adopt bylaws more quickly than usual. This order was repealed last week and was replaced with a new order after the Ombudsperson shared his draft report with government. The new order includes safeguards against arbitrary or inconsistent decision-making that the previous order did not contain.

“The new local government order is an improvement however it still purports to suspend or amend BC statutes, which is the primary problem we found with the original order,” said Chalke.

The Ombudsperson makes five recommendations to government in the report including introducing legislation as soon as possible to validate the orders and to not make any further orders amending statutes unless the legislature passes legislation authorizing such orders.

The remaining three recommendations, if adopted, would apply safeguards to ensure orders are not too broad and do not go further than necessary to achieve their objectives. The Ombudsperson is calling for ministerial orders that suspend or amend statutes to be temporary, expiring after a set number of legislative sitting days.

“Last year the government recognized that the Emergency Program Act needed modernization and engaged in public consultation, but legislative changes were not made before the pandemic,” said Chalke. “The minister’s response to our investigation indicated that legislation to amend the act would be introduced at the earliest opportunity.”

Today, the BC Government introduced Bill 19, the COVID-19 Related Measures Act. Bill 19 covers various issues also addressed in the Ombudsperson’s report. “I am pleased the government has moved promptly and I look forward to reviewing the details of today’s legislation,” said Chalke.

View the full report.