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On Whose Authority? Alberta’s Provincial Powers to Respond to a Health Emergency
Posted in Real Estate

In response to the COVID-19 pandemic, governments across Canada have put measures in place to slow the spread, but which have also had a significant impact on business. The purpose of this post is to provide an overview of the powers available to the Government of Alberta to respond to the pandemic, and most notably, those available under the Alberta Emergency Management Act and Alberta Public Health Act.

Under the Emergency Management Act, a pandemic may constitute an “emergency” that requires prompt co‑ordination of action or special regulation of persons or property to protect the safety, health and welfare of the people of Alberta. In response to such an emergency, the provincial government or a local authority, such as a municipality, may declare a “state of emergency” upon which the provincial government or applicable local authority has the power to take all necessary steps to manage the emergency. These steps may include but are not limited to:

(a)            acquiring or utilizing any real or personal property, excluding property within a national park or Indian reserve, considered necessary to prevent, combat or alleviate the effects of an emergency or disaster;

(b)            controlling or prohibiting travel to, or from any area of Alberta;

(c)            ordering the evacuation of persons and the removal of livestock and personal property from any area of Alberta;

(d)            authorizing the entry into any building or on any land, without requiring a warrant;

(e)            procuring or fixing prices for food, clothing, fuel, equipment, medical supplies, or other essential supplies;

(f)              using any property, services, resources or equipment within any part of Alberta to procure essential supplies for the duration of the state of emergency; and

(g)            authorizing the conscription of persons needed to meet an emergency.

While the Government of Alberta has yet to declare a Provincial state of emergency, several municipalities within the Province have elected to do so. On March 15, 2020, the City of Calgary declared a state of local emergency pursuant to the Emergency Management Act and on March 20, 2020, the City of Edmonton did as well. The declaration of a state of local emergency provides municipalities with the same powers afforded to the Provincial Government under the Emergency Management Act, with these powers being geographically restricted to the municipalities' territorial limits. As an example, the City of Calgary has closed all playgrounds and skateparks within the city limits and prohibited organized and team sports on public and private sports fields and courts.

If the Province were to declare a province-wide state of emergency under the Emergency Management Act, the municipalities which have previously declared a state of local emergency would become responsible for ensuring the provincial emergency response plan and orders are properly executed within their jurisdiction. Additionally, if there are any conflicts between a municipality's existing measures and the Province’s new emergency orders, the Province’s orders would overrule the municipality’s. Indeed, since Alberta declared a state of public health emergency pursuant to the Public Health Act, a number of municipalities have revoked some of their emergency orders.

As of the date of this post, the Government of Alberta has only taken action pursuant to the Public Health Act. On March 17, 2020, the Province officially declared the COVID-19 pandemic a “state of public health emergency”, which is distinguished from a “state of emergency” under the Emergency Management Act, but practically speaking provides similar powers to the Province. During a state of public health emergency the Chief Medical Officer of Health ("CMOH"), provincial cabinet, individual ministers, and regional health authorities may take any steps necessary to prevent, combat or alleviate the effects of the public health emergency. These steps may include but are not limited to the ability to:

(a)            acquire or use any real or personal property;

(b)            authorize the conscription of a person needed to meet an emergency;

(c)            authorize the entry into any building or on any land, without requiring a warrant;

(d)            provide for the distribution of essential health and medical supplies;

(e)            provide, maintain and co‑ordinate the delivery of health services; and

(f)              during a pandemic, authorize the absence of any person from employment who is ill or is caring for a family member who is ill.

In order to give effect to these powers, the Government of Alberta has the authority to make a variety of orders, whether the goal of such orders is to combat the spread or medical impact of COVID-19 or to lessen the economic impact on businesses and individuals. As noted above, theoretically the Province could order the repurposing of any private property for public use, or order the use of private business assets to deliver or produce public goods. Currently, the Government of Alberta has taken numerous measures to address COVID-19. The major measures that impact businesses are as follows:

  • The Government of Alberta has announced that all payments of corporate income tax balances for Alberta businesses that become owing on or after March 18, 2020, or require installment payments between March 18, 2020 and August 31, 2020, are deferred until August 31, 2020.
  • The Government of Alberta has announced that employers can defer WCB premium payments until 2021 and if an employer is a small or medium size business their 2020 WCB premium will be reduced by 50%. If an employer has already paid their 2020 WCB premium they are eligible for a 2020 rebate or credit.
  • On March 18, 2020, the Government of Alberta announced eligible small commercial customers can defer utility payments on natural gas and electricity until June 19, 2020, by contacting their utility provider.
  • On March 23, 2020, the Government of Alberta announced the portion of property taxes relating to education are to remain at the 2019 levels, and payments for businesses of the portion of property taxes relating to education are deferred for 6 months.
  • On March 27, 2020, the Government of Alberta announced that hotels and other lodging providers can defer payments of the tourism levy for amounts that become due on or after March 27, 2020, until August 31, 2020.
  • CMOH Order 07-2020: As of March 27, 2020, gatherings in excess of 15 people in an indoor location are prohibited and specific non-essential places of business such as, non-essential health services, businesses offering personal services, businesses providing wellness services, and any non-essential retail store including retail stores located in shopping centres, are no longer permitted to offer or provide services in a location that is accessible to the public. Restaurants, bars, cafes, coffee shops, food courts, and other food-services facilities are only permitted to operate through take-out, drive thru, and food delivery services. For a list of essential services click here.
  • Order SA: 003/2020 and Order SA: 004/2020 – As of April 1, 2020, residential landlords are prohibited from charging fees or penalties for late payment of rent from April 1, 2020, to June 30, 2020. Provisions in a lease that impose fees or penalties for late payments cannot be applied during this period, and the retroactive collection on or after July 1, 2020 of fees or penalties for late payment of rent that accrued from April 1, 2020 to June 30, 2020 is not permitted.
  • Order SA: 005/2020 – As of April 1, 2020, residential landlords are prohibited from making an application for possession (i.e. evicting a tenant) for non-payment of rent or utilities unless the landlord can show that a reasonable payment plan was in place and the tenant failed to follow it, or that the landlord made reasonable efforts to enter into a payment plan.
  • Order SA: 006/2020 – As of March 27, 2020, all new or pre-existing rental rate increases, as well as rent increases that were to occur upon the expiry or termination of a fixed term tenancy, are suspended for the term of the Order.
  • Order SA: 008/2020 – As of April 2, 2020, Service Alberta is temporarily allowing the Land Titles Office to register documents that have been witnessed, sworn, or affirmed by Alberta lawyers using two-way videoconferencing.
  • Order SA: 009/2020 – As of April 9, 2020, amendments to the Freedom of Information and Protection of Privacy Act have made it easier for business, public bodies, non-profits and other groups to remain compliant with the legislation by allowing public bodies the ability to extend the time period to reply to disclosure requests. Amendments were made to the Business Corporation Act, Companies Act, Partnership Act, and Societies Act suspending requirements for a business to make physical documents available for inspection, requirements to hold in-person meeting and obligations to file annual returns to the Registrar. Extensive amendments to the Condominium Property Act and its Regulations were also made. Requirements for developers or owners to hold in-person meetings have been suspended, the 5 year time period to prepare a reserve fund study has been suspended, occupancy may be delayed without liability if it is due to a public health emergency, and restrictions to access to a condominium unit by persons other than the occupant have been imposed.
  • Ministerial Order: 17/2020 – Temporarily suspended the reporting requirements under the Environmental Protection and Enhancement Act, the Water Act, and the Public Lands Act, excluding reporting for drinking water facilities.

It is important to note that this information is current as of April 27, 2020, and does not cover all of the Orders that have been issued by the Province. As the situation is rapidly changing please consult the Government of Alberta's COVID-19 website for the most up-to-date information.

If you have any questions about these Orders, please contact the authors or any member of our Real Estate Group.

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