The BC Legislature has not been in session for most of the time spanning the COVID-19 pandemic and the provincial state of emergency (the state of emergency was declared on March 18 and the Legislature’s last session was on March 23).
But that hasn’t stopped the BC government from taking significant practical, economic, and legal measures to respond to the crisis.
These measures included thirty (by our count) Ministerial Orders issued by the Minister of Public Safety and Solicitor General under the Emergency Program Act, which affected the legal rights of individuals and businesses in various ways deemed necessary “to prevent, respond to or alleviate the effects of any emergency or disaster”.
These include, M089/2020 – the Residential Tenancy (COVID19) Order, which purports to amend portions of the Residential Tenancy Act by not allowing landlords to evict tenants during the state of emergency. M120/2020 – the Protection Against Liability (COVID19) Order No. 2 purports to protect essential service providers from liability should an individual using the service contract COVID-19. Various orders have also extended the limitation periods for legal claims, confirmed that virtual signatures are acceptable in estate planning, allowed virtual meetings of various corporate entities, and outlawed unconscionable pricing for essential goods and supplies.
These measures have undoubtedly been helpful to put minds at ease, protect vulnerable populations, and facilitate compliance with the recommendations and requirements of the Public Health Officer (whose authority to issue orders is found under a different act, the Public Health Act).
However, a nagging question (perhaps only amongst lawyers) is what legal effect these Ministerial Orders have to the extent that they purport to amend legislation, expressly or implicitly establish specific interpretations of statutory provisions, and cover the same ground as the common law.
Ultimately, that question may be academic, because on June 22, 2020, the BC government introduced Bill 19 – the COVID-19 Related Measures Act, which enacts into law most* of the Ministerial Orders made under the Emergency Program Act. It also allows for the extension of those orders beyond the end of the provincial state of emergency, empowering the Lieutenant Governor to extend them for up to one year after the Act is brought into force.
*A notable omission from the Bill is M179 – Commercial Tenancy (COVID-19) Order, which prohibits evictions of commercial tenants if the landlord has not entered into a rent reduction agreement with their tenant that precludes evictions, and for that reason the landlord is ineligible for the Canada Emergency Commercial Assistance program.
Also omitted is M161 – Electronic Witnessing of Wills (COVID-19) Order, which allows for wills to be made (i.e. witnessed) through electronic means. However, on June 22, 2020, the BC Legislature gave first reading to Bill 21 – 2020 – Wills, Estates and Succession Amendment Act, 2020, which proposes to amend the Wills, Estates and Succession Act to allow for the creation, modification and revocation of electronic wills. Upon enactment, this Ministerial Order will be repealed.
Bill 19 also makes two amendments to the Emergency Program Act. The first amendment revises the wording of section 10 to clarify that the emergency powers delegated to the Minister of Public Safety and Solicitor General are not limited to those specifically enumerated in the section. The second gives limited powers to the Lieutenant Governor to make regulation temporarily suspending or modifying the application of certain laws during a state of emergency.
Taken together, these amendments sanction the expanded role for the executive branch of government in times of emergency—consistent with what the BC government has actually been doing during the COVID-19 emergency.