Governmental Responses to COVID-19 and the Limits of Law

This is a draft of part of the chapter I submitted to a forthcoming collection (from the University of Ottawa Press) on the law, policy and ethics of COVID-19. I discussed the different “forms of governmental power” in a previous blog (see here). Comments welcome!

Parliamentary sovereignty forms part of the constitutional bedrock of Westminster-style systems. As Canada is a federation with an entrenched Charter of fundamental rights, parliamentary sovereignty subsists in modified form. Nonetheless, subject to the limits imposed by the Charter, Parliament and the provincial legislatures have plenary authority “within their respective spheres of jurisdiction.”[1]

The scope for legal challenges to emergency legislation is, accordingly, limited. Reasonableness and procedural fairness do not come into it.[2] Even broad delegations of authority to ministers are constitutionally valid,[3] as long as a legislature does not abdicate its powers[4] or breach a distinct constitutional provision.[5] Such delegations may be “constitutionally suspect” when they vest plenary powers in ministers but Canadian courts have no authority to invalidate legislative delegations of power.[6] Powerful arguments have been mounted for a more forceful judicial role in policing delegations of authority,[7] but these are likely to fall on deaf ears in the context of an ongoing pandemic – indeed, the most prominent Canadian statements in relation to legislatures’ ability to delegate power to ministers in the most sweeping terms have been made in times of crisis.[8]

Courts can certainly police the boundaries of delegated power: ensuring that authority is exercised reasonably and procedurally fairly is an uncontroversial part of the judicial function. Judges might even narrow broad delegations of authority to bring them into line with fundamental constitutional principles – Quebec’s emergency legislation might be held not to authorize interference with extant judicial orders, for example,[9] Charter concerns might cause limits to be read into legislative responses to the emergency and judges may take a dim view at trial of the validity of tickets issued by officious municipal officers. Important as such judicial activity would be, it would occur at the margins, as judges are singularly unlikely in the current context to invalidate legislation which empowers ministers and other officials to take emergency action to combat a public health crisis.

Government power to enter into contracts and distribute largesse is subject to very few limits. The ordinary rules of contract, property and tort law apply but the principles of public law – reasonableness and procedural fairness – backed up by remedies which invalidate government action are unlikely to extend to the exercise of dominium in response to COVID-19.

Governments can rely on broad statutory and inherent powers in responding to the economic fallout from the pandemic. Section 60.3(1) of Bill C-13 empowers the Minister of Finance to establish and capitalize a Crown Corporation where, in his opinion “it is necessary to promote the stability or maintain the efficiency of the financial system in Canada.” Any such Corporation is exempt from the usual rules relating to the management and oversight of Crown Corporations.[10] Rather, under subsections 4-8, the Minister may issue directives to the Corporation which, in turn, its directors must follow, make regulations concerning the Corporation’s operations and set out terms and conditions relating to transactions the Corporation can engage in. This legislative grant of almost unconstrained power is not especially anomalous. The Crown – that is, the federal and provincial governments – “enjoys a general capacity to contract in accordance with the rule of ordinary law.”[11] Once monies have been lawfully appropriated, governments can put them to use in the pursuit of their policy objectives.[12] Given that “the Crown has the capacities and powers of a natural person,”[13] it has the inherent authority to enter into contracts, take out newspaper advertisements and publish guidelines as to how its powers will be exercised.

It would be very difficult to successfully seek judicial review of any decision made by the Crown Corporation envisaged by Bill C-13 or any contract entered into by the federal or provincial governments in the pursuit of medical supplies or vaccines. Judicial review, which permits the invalidation of governmental decisions, “is reserved for state action”.[14] Courts typically weigh several factors in the balance in determining whether a particular decision is subject to judicial review[15] but, in general, decisions to enter into contracts are singularly unlikely to qualify as state action.[16] Absent a violation of a statutory provision, allegations of “fraud, bribery, corruption or other kinds of grave misconduct,”[17] or some other special marker of public importance, courts will not be able to justify subjecting exercises of dominium to judicial review.

There is a recent strand of Commonwealth case law which suggests that the principles of public law can be injected into contractual arrangements. Where contractual discretionary powers exist, they must be exercised in accordance with public law principles.[18] This strand has not yet been woven into the tapestry of Canadian law.[19] Even if Canadian courts were to do so, it is not clear that contracts for the supply of vital medical equipment, anti-viral drugs or vaccines would contain any discretionary powers into which courts could inject principles of public law. And, of course, such principles could only be invoked by an unhappy party to a contract with the federal or provincial governments, who would be seeking to advance its commercial interests, not the public interest.

Judicial review remedies are available in respect of decisions which have an impact on “the rights, interests, property, privileges, or liberties of any person.”[20] This list is not to be parsed like a taxing statute but rather is to be given a large and liberal interpretation such that any modification to an individual’s legal position can be scrutinized for conformity with public law principles of reasonableness and fairness.

It is not boundless, however. For example, government pronouncements do not, in any sense, modify the legal position of any individuals. Consider Ontario’s use of the emergency alert system in April 2020, blaring a message out across the province’s smartphones. The emergency alert suggested that residents of Ontario should not leave their homes at all – in fact circulating freely was not and still is not prohibited[21] as long as large gatherings are avoided; indeed, non-essential businesses were not ordered to close until the day after the alert was sent out.[22] Nonetheless, although the terms of the alert might be debated as a matter of political propriety, it would be difficult if not impossible to persuade a court to judicially review an alert which did not impose any obligations or otherwise modify anyone’s legal position.

As for government guidance, it has long been difficult to seek judicial review of soft law instruments. A clue lies in the term: although such instruments are designed to guide (hence “law”) they do not bind (hence “soft”). Accordingly, they are subject to judicial review only in a relatively limited set of circumstances, such as where they conflict with legislation or delegated legislation,[23] prevent a decision-maker from exercising a discretionary power[24] or violate Charter rights (but only in situations where the soft law instrument has binding force).[25]

The recent decision in Sprague v. Her Majesty the Queen in right of Ontario[26]is highly instructive. This was an application for judicial review brought in the Divisional Court on behalf of an inpatient at the York General Hospital. The applicant was the inpatient’s son. The inpatient, who suffered from an acquired brain injury, had been moved to the Hospital from a long-term care facility for reasons unrelated to COVID-19. At the Hospital, the inpatient was assigned to a ward of patients particularly vulnerable to COVID-19. After the inpatient’s hospitalization, the Chief Medical Officer of Health for Ontario issued a memorandum to hospitals strongly recommending that only essential visitors be permitted. On foot of the memorandum, the Hospital instituted a ‘no visitors’ policy which prevented the inpatient’s son from visiting his father. The Divisional Court rejected the applicant’s attempts to judicially review the memorandum and policy. As for the policy, it was not a public act subject to judicial review but rather a private act relating to the Hospital’s management of access to its premises.[27] As for the memorandum, it was not issued pursuant to a statutory power, had no legal force, coerced no one and did not require anyone to do or refrain from doing anything; it was a mere recommendation over which the courts have no supervisory jurisdiction. For much the same reasons, the memorandum was not subject to review for compliance with the Charter.[28]

A different factual and legal matrix might lead to a different result in terms of the susceptibility of government guidance to judicial review, but there is no doubt that the circumstances in which pandemic-related soft law instruments will be reviewed for compliance with public law principles (including the Charter) are limited.

Accordingly, any shortcomings in the political accountability during the current crisis are unlikely to be remedied by increased legal accountability. Those concerned about the difficulty of holding Canadian governments to account in these trying times would be better advised to look to improving the channels of political accountability than trying to navigate those of legal accountability. If these channels are improved, public law principles such as reasonableness, fairness and proportionality may well flow through them to nourish debate and discussion,[29] but the necessary dredging is unlikely to be done by the judiciary.

[1] Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 SCR 189 at para 56.

[2] See especially Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525.

[3] See Chemicals Reference, [1943] SCR 1 [Chemicals Reference].

[4] See Re Grey (1918) 57 SCR 150 at 158 [Re Grey].

[5] For example, the taxation provisions of the Constitution Act, 1867: see Paul Daly, “Emergency Taxation Legislation: The Constitutional Framework”, Administrative Law Matters,24 March 2020.

[6] Ontario Public School Boards’ Association v. Ontario (Attorney General) (1997) 151 DLR (4th) 346 at para 51.

[7] See James Johnson, “The Case for a Canadian Nondelegation Doctrine” (2019) 52 UBCLR 817.

[8] Re Grey, supra note 17; Chemicals Reference, supra note 16. Moreover, it is not at all clear that the solution to the accountability problems caused by broad delegations of authority, which reduce the ability of legislatures to hold ministers to account, is to increase the powers of the judiciary.

[9] See Martine Valois, « Droit et urgence ne font pas bien ménage », La Presse, 14 avril 2020.

[10] These are contained in the Financial Administration Act, RSC 1985, c F-11, Part X but excluded by s. 60.3(3) of Bill C-13.

[11] Attorney General of Quebec v Labrecque, [1980] SCR 1057 at 1082.

[12] See e.g. Pharmaceutical Manufacturers Assn of Canada v British Columbia (Attorney General) (1997), 149 DLR (4th) 613; Canadian Doctors for Refugee Care v Canada, 2014 FC 651.

[13] Pharmaceutical Manufacturers Assn of Canada v British Columbia (Attorney General) (1997), 149 DLR (4th) 613 at para 27.

[14] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, [2018] 1 SCR 750 at para 12.

[15] See Air Canada v Toronto Port Authority and Porter Airlines Inc, 2011 FCA 347 at para 60.

[16] See e.g. Air Canada v Toronto Port Authority and Porter Airlines Inc., 2011 FCA 347 at para 52 (contract for janitorial services); Ferme Vi‑Ber inc. v Financière agricole du Québec, 2016 SCC 34, [2016] 1 SCR 1032 at para 46 (government stabilization programme); People for the Ethical Treatment of Animals, Inc v City of Toronto, 2020 ONSC 2356 at paras 38-49 (contract for advertising on bus shelters).

[17] Irving Shipbuilding Inc v Canada (Attorney General), 2009 FCA 116 (CanLII), [2010] 2 FCR 488 at para 62.

[18] See Braganza v BP Shipping Ltd, [2015] UKSC 17, [2015] 1 WLR 1661.

[19] See Paul Daly, “The Limits of Public Law: JW v Canada (Attorney General),2019 SCC 20” (2019) 32 Canadian Journal of Administrative Law & Practice 231.

[20] Martineau v Matsqui Institution Disciplinary Board (No 2), [1980] 1 SCR 602 at 623, per Dickson J, dissenting.

[21] See Government of Ontario, News Release, “Ontario Prohibits Gatherings of More Than Give People with Strict Exceptions” (28 March 2020), online: Newsroom <https://news.ontario.ca/opo/en/2020/03/ontario-prohibits-gatherings-of-five-people-or-more-with-strict-exceptions.html?utm_source=ondemand&utm_medium=email&utm_campaign=p>.

[22] See O Reg 119/20.

[23] See e.g.Ishaq v Canada (Citizenship and Immigration), 2015 FC 156, [2015] 4 FCR 297.

[24] See Maple Lodge Farms v Government of Canada, [1982] 2 SCR 2.

[25] See Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295.

[26] 2020 ONSC 2335.

[27] It was also not issued in the exercise of a statutory power of decision as per the Judicial Review Procedure Act, RSO 1990, c J.1.

[28] 2020 ONSC 2335 at para 60.

[29] See e.g. Paul Daly, “The Covid-19 Pandemic and Proportionality: A Framework” (31 March 2020) online (blog): Administrative Law Matters <https://www.administrativelawmatters.com/blog/2020/03/31/the-covid-19-pandemic-and-proportionality-a-framework/>

This content has been updated on May 18, 2020 at 17:30.