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The Emergency Measures Amendment Act

This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

S.M. 2020, c. 6

Bill 54, 2nd Session, 42nd Legislature

The Emergency Measures Amendment Act

Explanatory Note

This note is a reader's aid and is not part of the law.

This Act amends The Emergency Measures Act.

Currently, only the minister or a local authority may make emergency orders to prevent or limit loss of life and damage to property and the environment. This Act gives the Lieutenant Governor in Council the power to make three types of orders when a state of emergency is declared.

Emergency orders

The Lieutenant Governor in Council may make orders to alleviate the harm or damage from an emergency or disaster or to effectively respond to such an event. The order must be considered necessary and essential to prevent or limit serious harm or substantial damage to people or property or the effects of economic or fiscal disruption, as well as be a reasonable alternative to any other measures.

If a facility, such as an emergency shelter, is authorized to be built under an order, a local authority's by-law that would otherwise be applicable does not apply.

An emergency order made by the Lieutenant Governor in Council may be disallowed by the Assembly, in which case the order is revoked.

The Lieutenant Governor in Council's power to make these emergency orders is repealed one year after the Act comes into force.

Temporary suspension orders

The Lieutenant Governor in Council may temporarily suspend the operation of certain types of provisions in a statute, regulation or by-law if victims of an emergency or disaster or other affected persons need greater services, programs, benefits or compensation than the law provides or may be prejudiced by the law's operation during a declared emergency. The order must be considered necessary to help people affected by an emergency or disaster. The order may be made only if the Attorney General recommends it.

An order may be effective during a state of emergency or for a specified number of days or for any time period set out in the order. It may be renewed.

Reporting deadline variation order

The Lieutenant Governor in Council may also make orders varying the deadline or time period within which the government or a government agency is obligated to file or submit a report or information.

The Speaker of the Assembly may vary a deadline or time period for the submission of a report or information by an independent officer or members of the Assembly.

Other features of the orders

Each type of order may apply retroactively to the declaration of the state of emergency and must be published. An order cannot be in effect for more than six months.

In the case of a conflict with another legislative or legal instrument, the order prevails.

An order cannot be made in relation to a response to a request under The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act.

Enforcement officers

The Lieutenant Governor in Council may designate, by regulation, persons who can enforce orders made under The Emergency Measures Act.

Penalties

The penalties under The Emergency Measures Act are increased, for individuals, to a maximum of $50,000 or one year imprisonment, or both, and, for corporations, to a maximum of $1,000,000. The penalty for a breach of an evacuation order is increased to $500,000.

(Assented to April 15, 2020)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. E80 amended

1

The Emergency Measures Act is amended by this Act.

2

Subsection 12(1) is amended by replacing the section heading with "Order powers — minister, local authority".

3

The following is added after section 12.2:

Emergency orders — Lieutenant Governor in Council

12.3(1)

Upon the declaration of, and during a state of emergency or a state of local emergency, the Lieutenant Governor in Council may, in respect of the province or any area of it, make any order that the Lieutenant Governor in Council considers necessary and essential in the circumstances to prevent, reduce or mitigateserious harm, or substantial damage, to persons or property or the effects of fiscal or economic disruption if, in the opinion of the Lieutenant Governor in Council, it is reasonable to believe that

(a) making an order is a reasonable alternative to other actions, measures or procedures that might be taken to address the emergency or disaster; and

(b) the actions, measures or procedures provided for in the order

(i) alleviate the harm or damage resulting from the emergency or disaster, or

(ii) enable an effective response to the emergency or disaster.

Limitations on emergency order

12.3(2)

An emergency order is subject to the following limitations:

1.

Any action taken or done under the authority of the emergency order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.

2.

An emergency order shall apply only to the areas of the province where it is necessary.

3.

An emergency order shall be in effect only for as long as it is necessary but not more than six months from the day it becomes effective.

Subject matter for emergency orders

12.3(3)

In accordance with subsection (1) and subject to the limitations in subsection (2), the Lieutenant Governor in Council may make orders

(a) providing for the establishment of facilities for the care, safety, health or welfare of people, including emergency shelters and hospitals;

(b) fixing prices for necessary goods, services and resources and prohibiting the charging of unconscionable prices in respect of necessary goods, services and resources;

(c) requiring that any person collect, use or disclose information but only for the purposes of this section;

(d) doing any of the things listed in subsection 12(1) or (4) in relation to an emergency order;

(e) providing for the taking or doing of such other actions, or the implementation of such other measures or procedures, as the Lieutenant Governor in Council considers necessary to alleviate or respond to the effects of the emergency or disaster.

General or specific

12.3(4)

An emergency order may be general or specific in its application.

Commencement and retroactive effect

12.3(5)

An emergency order

(a) takes effect on the day that is made; or

(b) if it so provides, may have retroactive effect to a day specified in the order, which shall be no earlier than the day on which a state of emergency was declared under section 10 or 11.

Disallowance by Assembly

12.3(6)

The Assembly may, by resolution, disallow an emergency order. If the Assembly passes such a resolution, the order is revoked as of the day that the resolution passes.

Local authority by-laws do not apply

12.3(7)

A by-law of a local authority (as defined in section 12.4) that is inconsistent with an emergency order is of no force or effect to the extent of the inconsistency.

Emergency order re information collection and disclosure

12.3(8)

Information that is subject to an emergency order made under clause (3)(c) is subject to any law with respect to the privacy and confidentiality of personal information when the state of emergency is terminated, including The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act.

Conflict

12.3(9)

In the event of a conflict between an emergency order and any other enactment or a by-law, licence, permit, approval, agreement or instrument, the order prevails unless the other enactment, by-law, licence, permit, approval, agreement or instrument specifically provides that it is to apply despite this Act.

Publication

12.3(10)

An emergency order must be published on a government website as soon as reasonably practicable.

Statutes and Regulations Act does not apply

12.3(11)

The Statutes and Regulations Act does not apply to an emergency order.

Repeal

12.3(12)

This section is repealed one year after the day it comes into force.

Definition

12.3(13)

In this section, "emergency order" means an order made under this section.

Definitions

12.4

The following definitions apply in sections 12.5 to 12.16.

"administrative tribunal" means a body established or an individual appointed by or under an Act to decide matters in accordance with the authority given under that Act, but does not include

(a) a judicial justice of the peace appointed under The Provincial Court Act;

(b) the Provincial Court or a judge of that court;

(c) the Court of Queen's Bench or a judge or master of that court; or

(d) the Court of Appeal or a judge of that court. (« tribunal administratif »)

"enactment" means an Act, or a regulation as defined in The Statutes and Regulations Act, or any provision of an Act or regulation. (« texte »)

"local authority" has the same meaning as in subsection 8(3) of The Statutes and Regulations Act. (« autorité locale »)

"temporary suspension order" means an order made under subsection 12.6(3). (« décret portant suspension temporaire »)

"temporary suspension period" means the period of time during which a temporary suspension order is in effect as determined under subsection 12.7(2). (« période de suspension temporaire »)

Purpose — temporary suspension order

12.5

The purpose of sections 12.6 to 12.13 is to authorize the Lieutenant Governor in Council to make appropriate orders when, in the opinion of the Lieutenant Governor in Council, victims of an emergency or disaster or other persons affected by an emergency or disaster need greater services, programs, benefits or compensation than the laws of Manitoba provide or may be prejudiced by the operation of the laws of Manitoba.

Application — temporary suspension order

12.6(1)

This section applies to the following:

(a) a provision that governs services, programs, benefits or compensation, including by

(i) fixing maximum amounts,

(ii) establishing eligibility requirements,

(iii) requiring that something be proved or supplied before services, programs, benefits or compensation become available,

(iv) requiring the payment of a fee to access a service or program,

(v) restricting how often a service or benefit may be provided or a payment may be made in a given time period, or

(vi) restricting the duration of services, programs, benefits or compensation or the time period during which they may be provided;

(b) a provision that governs an action or activity in respect of carrying out a business or participating in a regulated activity, including by establishing a deadline or time period within which a report or information must be filed or submitted;

(c) a provision that establishes a limitation period or a time period within which a step must be taken in a proceeding;

(d) a provision that requires the payment of a fee in respect of a proceeding or in connection with anything done in the administration of justice;

(e) a provision that requires the holding of a proceeding in person, including an administrative tribunal hearing;

(f) a provision that requires an action or activity to be undertaken in the presence of a person;

(g) a provision that requires the payment of late fees, interest or a monetary penalty.

Restrictions — temporary suspension order

12.6(2)

This section does not authorize

(a) making any reduction in services, programs, benefits or compensation;

(b) shortening a limitation period; or

(c) increasing the amount of a fee or penalty.

Temporary suspension order — Lieutenant Governor in Council

12.6(3)

If

(a) a state of emergency has been declared under section 10 or 11;

(b) the Lieutenant Governor in Council is of the opinion that the order would facilitate providing assistance to victims of the emergency or disaster or would otherwise help victims or other persons in dealing with the emergency or disaster and its aftermath; and

(c) the Attorney General recommends the making of the order;

then the Lieutenant Governor in Council may, by order,

(d) temporarily suspend the operation of a provision of an enactment or a by-law of a local authority; and

(e) if it is appropriate to do so, set out a replacement provision to be in effect only during the temporary suspension period.

General or specific

12.6(4)

A temporary suspension order may be general or specific in its application.

Limited duration of temporary suspension order

12.7(1)

A temporary suspension order is in effect for the period of time stated in the order unless sooner revoked by the Lieutenant Governor in Council.

Determination of temporary suspension period

12.7(2)

The temporary suspension period is to be one of the following:

(a) the duration of the state of emergency;

(b) a specified number of days;

(c) any other period of time set out in the order.

For clauses (b) and (c), the period of time shall not be more than six months from the day the order becomes effective.

Retroactive effect

12.7(3)

A temporary suspension order may have retroactive effect but it shall not be in effect earlier than the day on which the state of emergency was declared under section 10 or 11.

Renewal of temporary suspension order

12.8

If a temporary suspension period ends during the state of emergency, the Lieutenant Governor in Council may renew the order before the period ends.

Effect of temporary suspension — limitation and other periods

12.9(1)

If a provision establishing a limitation period or other time period described in clause 12.6(1)(c) is suspended under the authority of a temporary suspension order and the order does not provide for a replacement period, the period resumes running on the day on which the temporary suspension period ends, and the temporary suspension period must not be counted.

Effect of temporary suspension — fee

12.9(2)

If a provision requiring the payment of a fee is suspended under the authority of a temporary suspension order and the order does not provide for a replacement fee, no fee is payable at any time with respect to any thing done during the temporary suspension period.

Effect of temporary suspension — late fees, interest, penalties

12.9(3)

If a provision requiring the payment of late fees, interest or a monetary penalty is suspended under the authority of a temporary suspension order and the order does not set out a replacement provision, no late fee, interest or penalty is payable at any time during the temporary suspension period, and the late fee, interest or penalty must not accrue.

Compliance with replacement provision

12.10

A person who complies with a replacement provision set out in a temporary suspension order is deemed to have complied with the provision in the enactment or by-law for which the replacement is provided.

Conflict

12.11

In the event of a conflict between a temporary suspension order and any other enactment or a by-law, licence, permit, approval, agreement or instrument, the order prevails unless the other enactment, by-law, licence, permit, approval, agreement or instrument specifically provides that it is to apply despite this Act.

Publication

12.12

A temporary suspension order must be published on a government website as soon as reasonably practicable.

Statutes and Regulations Act does not apply

12.13

The Statutes and Regulations Act does not apply to a temporary suspension order.

Order — varying reporting deadlines for government and government agencies

12.14(1)

When a state of emergency has been declared under section 10 or 11, the Lieutenant Governor in Council may, by order, temporarily vary a deadline or time period in an enactment within which the government, including a minister or a department, or a government agency, is obligated to file, submit or table a report or information.

Duration of varied deadline

12.14(2)

The duration of the varied deadline or varied time period must be specified in the order, which shall not be more than six months after the day the order becomes effective. If the order so provides, it may have retroactive effect to a day specified in the order, which shall be no earlier than the day on which the state of emergency was declared.

Compliance

12.14(3)

The government or government agency is deemed to have complied with the obligation in the enactment when it complies with the varied deadline or time period.

Other provisions apply

12.14(4)

Sections 12.11 to 12.13 apply to an order made under subsection (1), with necessary changes.

Speaker may vary deadline or time period

12.15(1)

When a state of emergency has been declared under section 10 or 11, the Speaker of the Assembly may temporarily vary a deadline or time period in an enactment within which an independent officer of the Assembly or member of the Assembly is obligated to file, submit or table a report or information.

Duration of varied deadline

12.15(2)

The duration of the varied deadline or time period must be specified. The variation may have retroactive effect to a specified day, which shall be no earlier than the day on which the state of emergency was declared.

Expiry

12.15(3)

The variation ceases to have effect at the end of the next session of the Legislature unless sooner revoked by the Speaker.

Compliance

12.15(4)

An independent officer or member of the Assembly who complies with the varied deadline or time period is deemed to have complied with the obligation in the enactment.

Other provisions apply

12.15(5)

Sections 12.11 to 12.13 apply to a variation made under subsection (1), with necessary changes.

Order may not be made re information access request

12.16

An order made under section 12.3, 12.6, 12.14 or 12.15 must not be made in relation to a response to a request under The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act.

4

Section 13 is amended by striking out "section 12" and substituting "section 12 or 12.3".

5

Section 18.1 is amended, in the part before clause (1)(a) and in subsection (2), by striking out "section 12" and substituting "section 12 or 12.3".

6

The following is added before section 20:

Regulations re enforcement officer

19.1

The Lieutenant Governor in Council may, by regulation, designate a person or class of persons authorized to enforce this Act, including an order made under this Act, subject to any restrictions or conditions specified in the regulation.

7(1)

Subsection 20(1) is amended

(a) in the English version of the part before clause (a), by striking out "commits" and substituting "is guilty of"; and

(b) in clause (a) by striking out "by the minister or a local authority" and substituting "or 12.3".

7(2)

Subsection 20(2) is replaced with the following:

Penalty — individual

20(2)

Subject to subsection (3), a person, other than a corporation, who is guilty of an offence under subsection (1) is liable on conviction to a fine of not more than $50,000, or imprisonment for a term of not more than one year, or both.

Penalty — corporation

20(2.1)

A corporation that is guilty of an offence under subsection (1) is liable on conviction to a fine of not more than $1,000,000.

7(3)

Subsection 20(3) is amended

(a) by striking out "section 12" and substituting "section 12 or 12.3"; and

(b) by striking out "$50,000." and substituting "$500,000".

7(4)

The following is added after subsection 20(3):

Time limit for prosecution

20(4)

A prosecution under this Act may be commenced within two years after the offence is alleged to have occurred, but not afterwards.

Increased penalty

20(5)

Despite the maximum fines set out under subsections (2) and (2.1), the court that convicts a person of the offence of failing to comply with an order made under section 12.3 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.

Exception

20(6)

A person must not be charged with an offence for failing to comply with an order made under this Act or interference or obstruction in respect of an order that is retroactive to a day that is specified in the order if the failure to comply, interference or obstruction is in respect of conduct that occurred before the order was made but is after the retroactive date specified in the order.

Due diligence defence

20(7)

No person shall be found to have failed to comply with an order under section 12 or 12.3 if the person can establish that they took all reasonable steps to prevent the failure.

8

Clause 20.1(b) is amended by striking out "section 12" and substituting "section 12 or 12.3".

9(1)

Subsection 21(2) is amended by striking out "section 12" wherever it occurs and substituting "this section".

9(2)

Subsection 21(2) is further amended by renumbering it as subsection 12(6).

Coming into force

10

This Act comes into force on the day it receives royal assent.