Arbitrary imposition of fines under the New Brunswick Emergency Back to Work Order or the Mandatory Order during a State of Emergency: A discussion paper
By
Lyle Skinner
Abstract
The Government of New Brunswick has the legal authority to impose a back to work order on employees whose duties are deemed essential by the Government to respond to the current COVID-19 State of Emergency. The province further has the authority to enacted certain public health measures to protect the health and safety of individuals. However, there are a series of legal risks to the Government’s Order which may impact enforcement and also distort the rule of law. One example is the Minister of Public Safety’s use of powers that were not delegated by the Legislature related to the imposition of arbitrary fines by unilaterally suspending the operation of primary law via ministerial decree. A finding by the Court that the province exceeded its delegated authority to unilaterally impose fines, also means that fines under the general covid-19 mandatory order are also improperly enacted.
Structural Overview.
Section 10(1) of the Emergency Measures Act allows the Minister of Public Safety to declare a state of emergency when the Minister is satisfied that an emergency exists or may exist. The Act defines an emergency as the following:
a present or imminent event in respect of which the Minister or municipality, as the case may be, believes prompt coordination of action or regulation of persons or property must be undertaken to protect property, the environment or the health, safety or welfare of the civil population
There is a significant degree of subjectivity on what is a bona fide state of emergency. Generally, the Courts and the Legislative Assembly confer considerable deference to the Executive for determination of what is an emergency. Unlike some other provinces, there is no present role for the Legislative Assembly with respect to termination of a state of emergency. A state of emergency ends when in the opinion of the Minister, an emergency no longer exists or after 14 days unless approval is granted by the Lieutenant Governor in Council (Cabinet) to renew the state of emergency under section 17.
Once a state of emergency is declared, section 12 of the Emergency Measures Act permits the Minister to “do everything necessary for the protection of property, the environment and the health or safety of persons therein” in order to respond to the state of emergency. Although the act provides a list of defined powers under section 12 including, for example, the ability to issue orders requiring “any person to render the aid that the person is competent to provide”, this list is not exhaustive and merely illustrative. Instead the act must be examined in its purpose to allow the Minister to respond to Emergencies within the constitutional limitations imposed only by federalism, the Charter of Rights and Freedoms and the rule of law.
In response to rising cases of Covid-19, on September 24, 2021, the Minister of Public Safety Ted Flemming simultaneously declared a state of emergency and issued a mandatory order enacting Public Health rules to respond to the state of emergency. Within the interpretative limits, there is a presumed constraint that any powers exercised by the Minister must have a link to the State of Emergency.
For the purposes of the current state of emergency, it is defined as the following:
The scope of the current state of emergency indicates that COVID-19 poses a “serious and imminent risk to public health” and that it is a twin Public Health and Health Care emergency. In this regard, any Ministerial orders issued must be linked to addressing the risks regarding COVID-19.
On November 5, 2021, the Minister of Public Safety issued a separate Public Health care Emergency Order requiring certain Public Service employees, within the Healthcare Sector who have been on strike since October 30, to report back to work. Government is constrained by the State of Emergency on which classes of workers it can order back to work. For example, Public Sector workers in the education system do not have direct nexus to the Government’s response to the COVID-19 State of Emergency. The Emergency Back to Work order was rescinded on November 14 due to the ratification of a new collective agreement by healthcare workers. However the union has not ruled out subsequent legal challenges to the constitutionality of the order.
Government certainly has the legal authority under the Emergency Measures Act to order individuals within the Healthcare sector back to work. Such an order is different from traditional back to work legislation as it cannot reasonably impose binding arbitration. Further, a Ministerial Order only has legal force for the duration of a state of emergency. In this manner, it operates to delay a strike action for the duration of a state of emergency rather than to resolve the underlying labour issues.
A closer examination of the emergency order highlights certain legal risks with the Government’s approach that will be discussed below where the Ministerial Order exceeds its delegated authority by the Legislature.
The order conflicts with the parent act by imposing new penalties for violating the order
The Minister via paragraphs 13, 14, and 15 is imposing penalties which have no legal basis in law. This is because the Legislature never conferred upon the Minister of Public Safety the discretionary authority to impose a fine that is inconsistent with the parent Emergency Measures Act.
Similarly the same issue applies to fines under the general mandatory order. Paragraph 18 of the December 4, 2021 Order states the following:
Section 24(1)(b) of the Emergency Measures Act states that anyone who “violates or fails to comply with a direction, order or requirement made under this Act or the regulations.” commits a Category F offence as defined under the Provincial Offences Procedure Act. This act under section 56(6) defines the fines that could be imposed by a judge for first time category F offences are between $240 and $10,200. Further s.14(5)(a) limits the fine amount of a fixed penalty in relation to a ticket issued under the act to “the minimum fine set for the offence charged” which is $240 for a category F offence.
Interpretive principles guiding a conflict between a statute and regulations.
Supreme Court Justice La Forest writing for the majority in Friends of the Oldman River Society stated the general principle that subordinate regulations cannot conflict with their parent act or other act. In brief, “Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislations” unless the enabling legislation of the regulation specifically confers a power to amend primary laws. La Forest indicated that the Courts will attempt to reconcile any inconsistencies between laws so that compliance with both is possible. With respect to delegated powers, “there is a presumption that the legislature did not intend to make or empower the making of contradictory enactments.”. The test effectively becomes “compliance with one law involves breach of the other”.
In the context of two conflicting statutes, in Public Utilities Commission of the City of Brantford v. Brantford (City of), 1998 Justice Rosenburg rephrased this view of impossibility of dual compliance arises “only if the two pieces of legislation cannot stand together that any question of conflict arises so as to possibly impair the operation of the earlier legislation.”
Resolving inconsistencies
Re Gray is the textbook case of the Courts generally confirming the use of what is known as either an enabling act or a “Henry VIII” clause whereby the Legislature is conferring a delegated power on the executive to amend or suspend the application of primary legislation via regulatory amendment. The Supreme Court of Canada in Re Gray confirmed the validity of wartime emergency powers under the War Measures Act which the enabling act section provided the federal Cabinet with the ability to “to make from time to time such orders and regulations as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada”.
Interpretative Limits of the Emergencies Measures Act
Unlike the War Measures Act, the scope of the Emergencies Measures Act cannot be interpreted with a similar scope due to the Legislature conferring the same powers to the Minister of Public Safety during a State of Emergency as a Mayor of a Municipality. Section 12 of the act is listed in full:
Powers of Minister and municipality
12 On a state of emergency being declared in respect to the Province or an area of the Province, or on a state of local emergency being declared in respect to a municipality or an area of a municipality, the Minister may, during the state of emergency, in respect of the Province or an area of the Province, or the municipality may, during the state of local emergency, in respect of the municipality or an area of the municipality, as the case may be, do everything necessary for the protection of property, the environment and the health or safety of persons therein.
It is not a reasonable interpretation that the Emergency Measures Act confers a Henry VIII power upon the Minister to amend or suspend primary laws. Such an interpretation would therefore logically confer a Mayor the same powers during a local state of emergency. Simply the Legislature does not distinguish between the two. Further the general phrase “do everything necessary” does not confer the same meaning as “making such orders and regulations.”
The Supreme Court of Canada in Belanger v. The King (1916), 54 S.C.R. 265 outlines the general interpretive rule that “A regulation may provide for something to be done consistent with the requirements of the statute, but it is not permitted, … to amend the statute”. The exception to this is if the statute specifically delegates the authority to do so as outlined by La Forest in Oldman River.
The historical record shows that the Emergency Measures Act is not an enabling act.
On June 10, 2020 the former Minister of Public Safety introduced Bill 49, an act to amend the Emergency Measures Act, which proposed to give Cabinet the authority to amend or suspend both Acts and Regulations. The accompanying press release characterizes it as the following.
Make it clear that Cabinet has the authority to suspend, amend or supersede the operation of provisions of any public act, regulation, rule, municipal bylaw or order during a state of emergency.
This press release is incorrect as it implies that the Cabinet presently has the above authority or that there is uncertainty of whether it does by using the term “clarify”. Notwithstanding limited powers conferred to Cabinet by the Legislature in 2020 respecting deadlines and time periods, Cabinet has no legal authority to exercise emergency powers on behalf of government. Rather those powers are generally vested in the Minister of Public Safety.
The Henry VIII clause of bill 49 would have created section 12.4 giving the Executive Branch considerable powers to amend laws without the approval of the Legislative Assembly:
Powers of Lieutenant-Governor in Council – suspending the operation of, amending or superseding provisions
12.4( 1) Subject to sections 12.1 and 12.2, on a state of emergency being declared in respect to the Province or an area of the Province, on the recommendation of the Minister and the Attorney General, the Lieutenant-Governor in Council may, by Order in Council, suspend the operation of or amend or supersede a provision of any public act or municipal by-law until the earlier of the following:
the date the state of emergency ends; and
b) a date that is determined by the Legislative Assembly no later than 30 days after the date the Order in Council is made.
Although 12.4(2) proposed conferring upon Cabinet the authority to suspend or amend regulations, there is not the same rule of law concerns as this is a function of amending or suspending regulatory law as a matter of administrative efficiency whereby it is altering powers already delegated to Cabinet.
It is also important to note that although the government proposed a series of laws which Cabinet could not amend without the Assembly, the Emergency Measures Act was not one of the acts. Therefore, had Bill 49 become law, a Cabinet could in theory amend the Emergency Measures Act to remove any restraints on the use of this power.
Bill 49 did not become law as it died on the order paper as a consequence of the dissolution of the 59th Legislature. By using the term ‘clarify’, it incorrectly asserts a prior basis of constitutional authority when in fact none exists.
Discussion: Powers Afforded to Cabinet versus the Minister
It is not plausible to assert that Bill 49 merely transferred existing powers conferred to the Minister of Public Safety to Cabinet. Rather Bill 49 proposed to create a legal foundation to amend or suspend laws where the current practices by the government are without legal foundation no matter how desirable or justifiable. This raises a paradox if either the Minister of Public Safety or Cabinet had the current power to impose unilateral fines by amending the Emergency Measures Act, then why would they seek the same power to do so via the Assembly?
The Back to Work Order & the Mandatory violates the rule of law
At its core, the Back to Work and Mandatory Orders violate the core constitutional principle related to the rule of law brought forward by Supreme Court Justice Rand in Roncarelli v. Duplessis stating
there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.
Rand further states that continual sanction of arbitrary executive action “would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.” In this manner no matter how justifiable government may be in imposing fines related to the back to work order or the mandatory order, they must be lawfully enacted. This means passed by the Legislature. States of Emergency are the times when our democratic structures are challenged to their very limits. This is why it is especially important that the rule of law be respected and maintained during a state of emergency. If government wishes to increase potential penalties, they simply have to request such a power from the Legislature.
