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Emergency Measures to COVID-19

Overview

To assist our clients, Sharek&Co. developed a Practice Group to assess the legal issues facing businesses and organizations related to the evolving COVID-19 situation. For more information about this update or to discuss legal issues affecting your organization, please free to contact our office directly.

After the World Health Organization declared the novel coronavirus (COVID-19) a pandemic, the Alberta government has since instituted a public health state of emergency. This Legal Update is intended to give an overview regarding potential legal issues arising from COVID-19 and key considerations as to potential impacts.

Emergency Measures

A number of emergency measures have been imposed by both the Federal and Alberta governments due to the evolving COVID-19 situation.  Some of these measures have included: 

Federal

• March 19, 2020: All Canadians returning home from travel outside of Canada urged to self-isolate for 14 days.
• March 18, 2020: Government of Canada, in conjunction with the United States, closed the Canadian-US border to all non-essential travel.
• March 16, 2020: Government of Canada banned the entry of all non-Canadian or non-permanent residents into Canada.
• March 14, 2020: Government of Canada issued a travel advisory to avoid all non-essential travel outside of Canada and all travel by cruise ship. Canadians were urged to return home via commercial means while they still remain available.
• To date the federal government has imposed emergency measures under the Quarantine Act, the Aeronautics Act, and other federal legislation. It is assessing the extraordinary powers under the Emergencies Act.  

Alberta

In response to the COVID-19 pandemic, the Province of Alberta announced a state of public health emergency under the Public Health Act (the "PHA"). The declaration enables the Alberta government to take measures intended to protect public health. To date, among other measures, the provincial government has prohibited mass gatherings, attendance at recreation and entertainment facilities, and limiting the capacity of restaurants and bars.

• March 17, 2020: the Government of Alberta declared a public health state of emergency.
• March 14, 2020: Given the rapid global increase in the spread of COVID-19, the Government of Alberta recommended against travel outside of Canada.  

Public Health Emergency

On March 17, 2020, the Executive branch of Alberta's Government declared a provincial public health emergency under s. 52.1 of the Public Health Act ("PHA").

Section 52.1(1) of the PHA provides that, "on the advice of the Chief Medical Officer", the provincial Cabinet "may make an order declaring a state of public health emergency relating to all or any part of Alberta". To do so, the Cabinet must be satisfied that: (a) "a public health emergency exists or may exist"; and (b) "prompt co-ordination of action or special regulation of persons or property is required in order to protect the public health".

A "public health emergency" includes "an occurrence or threat" of an illness, a health condition, or an epidemic or pandemic disease "that poses a significant risk to the public health" (s. 1(hh.1)).

Under the PHA, an order declaring a public health emergency lapses after 30 days, or after 90 days in the case of "pandemic influenza" (s. 52.8(1)(a)). The provincial legislature may pass a resolution extending the declaration, however (s. 52.8(1)).

Powers under the Public Health Act

Once a public health emergency is made under the PHA, the Alberta government may order:

• the closure of any public place (s. 38(1)(a));
• the immunization of persons against the disease (s. 38(1)(c)).

For the purposes of "preventing, combating or alleviating the effects of the public health emergency and protecting the public health", the provincial government may:

• acquire or use any real or personal property (s. 52.6(1)(a));
• authorize or require any qualified person to render aid that they are qualified to provide (s. 52.6(1)(b));
• authorize the conscription of persons needed to meet an emergency (s. 52.6(1)(c));
• authorize the entry into any building or on any land, without warrant (s. 52.6(1)(d));
• provide for the distribution of essential health and medical supplies and to provide, maintain and co-ordinate the delivery of health services (s. 52.6(1)(e)).

The PHA allows for compensation for anyone whose personal property is damaged or destroyed as a result of the exercise of any government powers during the public health emergency (s. 52.7 (1)). 

Other Emergency Measures

A state of public health emergency is different than a provincial state of emergency. If the Alberta government declared a provincial state of emergency, the Cabinet would immediately be vested with powers under the Emergency Management Act ("EMA") that differ from the powers currently available to it under the PHA. 

As of March 20, 2020, Alberta has not yet declared a provincial state of emergency. Other provinces - British Columbia, Ontario and Saskatchewan so far - have done so.  Alberta could potentially follow suit.   Thus far, Alberta has only ever declared a province-wide or provincial state of emergency twice: during the 2013 Calgary flood, and again during the 2016 Fort McMurray wildfire.

The provincial legislature amended the EMA through the Emergency Management Act, 2018. The 2018 amendments were informed in large part by the province's experiences and steps taken during the 2013 and 2016 emergencies. 

Summary

By declaring that the COVID-19 pandemic is a public health emergency, the Alberta government has enhanced powers to "prompt co-ordination of action or special regulation of persons or property in order to protect the public health" (s. 52(1)(b)).

The provincial government has already taken steps under the PHA declaration to limit gatherings, prohibit attendance at private and public recreational centres and limit the operation of restaurants and bars. The declaration of public health emergency under the PHA may last up to 30 days, and the provincial legislature may extend it further thereafter.

Should Alberta invoke a state of emergency under the EMA, it would have broad powers to impose restrictions and implement emergency measures deemed necessary to address the crisis. Such measures could include provincial travel restrictions, mandated closures, the establishment of emergency facilities, price controls, or the procurement of necessary goods, services and resources.

The Alberta government has some limits on its statutory powers to conduct these in a manner consistent with the legislation and the Constitution, which can be reviewed by the courts.