B.C. Ombudsperson states emergency orders “cannot be legally justified”

Original Photo by Tingey Injury Law Firm on Unsplash

By: Broderick Visser

In June of 2020, British Columbia Ombudsperson, Jay Chalke, released ‘Special Report No. 44’ titled “EXTRAORDINARY TIMES, EXTRAORDINARY MEASURES: Two ministerial orders made under the Emergency Program Act in response to the COVID-19 pandemic.”

We believe it is important to discuss the details and concerns contained within the report.

Ombudsperson Chalke “respectfully disagrees” that he doesn’t have “the authority to investigate.”

“This investigation focuses on whether the minister has the authority under the Emergency Program Act to make orders that suspend or amend provisions of the statutes of British Columbia. The government took the position that the Ombudsperson Act does not give me the authority to investigate whether the minister exceeded his powers under the Emergency Program Act,” reads page 15 of the report.

“I respectfully disagree. As I am in this investigation questioning the minister’s legal authority to issue various orders, I consider it to be especially important to transparently set out my own legal authority to conduct this investigation consistent with the history and purpose of the Ombudsperson Act.”

Ministerial Orders M098 and M139.

The report lays out and focuses on Ministerial Orders M098 and M139.

•   M098, Limitation Periods (COVID-19) Order No. 2, which repeals and replaces M086, Limitation Periods (COVID-19) Order
•   M139, Local Government Meetings and Bylaw Process (COVID-19) Order No. 2, which repealed and replaced M083, Local Government Meetings and Bylaw Process (COVID-19) Order.

M098 repealed and replaced M086 on April 15, 2020, which allowed the B.C. government to extend the duration of a state of emergency. M086 contained two key provisions;

1. “It suspended every mandatory limitation period and any other mandatory time period established in a B.C. statute within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal.”
2. “It allowed a statutory decision maker (whether a person, tribunal or other body) to waive, suspend or amend a mandatory time period relating to the exercise of that power.”

Page 19 of the report explains that the orders allowed them to bypass the legislative process which “could cause problems for persons seeking to enforce their legal rights.”

“The preamble explains that, as a result of the pandemic and necessary public health measures, it may not be possible for a person involved in proceedings to take steps required by legislation. These suspensions may expose some to litigation that might have otherwise not proceeded. They also delay other proceedings and thus could cause problems for persons seeking to enforce their legal rights.”

“The minister regarded this order as a ‘necessary and proportionate response’ to the state of emergency. Rather than referencing a specific paragraph of s. 10(1) of the Emergency Program Act, the preamble relies on the minister’s power in the opening words of s. 10(1) to ‘do all acts and implement all procedures’ as authority for the order.”

The order may waive, suspend or extend mandatory time limits until the end of the state of emergency

As a result of this order, a number of complaints and other issues made or brought to attention by the populous could be overlooked until the state of emergency ends.

“As a result of this order, statutory decision makers may waive, suspend or extend mandatory time limits until the state of emergency ends. … This provision of the ministerial order could apply, for example, to statutory time limits for:”

• the Ministry of Social Development and Poverty Reduction to make a reconsideration decision about a person’s eligibility for disability assistance
• a party to file a notice of objection to a decision of the Civil Resolution Tribunal
• a person to make a complaint to the Human Rights Tribunal
• a former teacher to appeal a decision to rescind a teaching certificate
• an employer to appeal a determination under the Employment Standards Act that they must pay wages or compensation to an employee
• an employer to request a review of a decision by WorkSafeBC related to occupational health and safety
• a WorkSafeBC review officer to decide on a review of a decision related to compensation or to occupational health and safety
• an employer adversely affected by a mine inspector’s order to take remedial measures to appeal that decision

On page 22, Chalke says while a court or tribunal might rule it was reasonable for local governments and statutory decision makers to have assumed that the orders were valid — it doesn’t make them valid.

“Local governments and statutory decision makers have likely relied on the authority that the orders purport to delegate. A court or tribunal asked to consider a question related to the application of these orders might rule that it was reasonable for a local government or statutory decision maker to have assumed that the orders were valid.”

“However, the fact that others are relying on the orders in their decision making does not make the orders valid.”

BRITISH COLUMBIA OMBUDSPERSON, JAY CHALKE, Page 22 of ‘SPECIAL REPORT NO. 44″

He later discusses whether the Ministerial Orders “are contrary to law.”

He states on page 24 that the orders “cannot be legally justified” on various bases.

“The law is concerned with authority, not whether any particular order is seen as a good idea. The orders cannot be legally justified on the basis that they have been made in good faith or that the measures they enact are supported by, or in the best interests of, the majority of British Columbians.”

He then adds;

“Even if the minister uses these powers in an entirely benevolent way, it is the exercise of unauthorized order-making powers that undermines the rule of law, not the policy motivations for those orders. The hope that draconian measures would “never happen” offers little comfort given the realities of human history and the temptations of vesting what is effectively absolute legislative power in a single individual during a state of emergency.”

Diverge Media’s Greg Staley will be diving deeper into the report this week — stay tuned.