Who Decides What to Shut Down? The Health Protection and Promotion Act, RSO 1990, c H.7

COVID-19 cases are on the rise in Ontario. The Premier will give a press conference this afternoon. Portentously, it is Friday the 13th.

At issue is the province’s recently published plan for the tightening and loosening of restrictions on economic activity. Ontario’s COVID hotspots — Toronto, Peel and Ottawa — had been operating under increased restrictions during the month of October; this seems to have caused case numbers to plateau. But the province’s plan has been criticized by public health experts, as it sets very high thresholds for the imposition of the most restrictive measures, such as the closing of bars and restaurants.

According to a story published in the Toronto Star, the provincial government refused to accept its public-health experts’ advice on the thresholds. In particular, the experts advised a test positivity rate of 2.5% for imposing the highest level of restrictions. The government’s plan sets 10% as the trigger.

One issue which emerges — though it may be mooted this afternoon, if the Premier announces increased restrictions — is who decides what restrictions to put in place. This is not a new issue. In September/October, Toronto’s medical officer, Dr de Villa, suggested that she did not have the power to close bars and restaurants in the city, urging the province to take action instead.

No doubt there is an argument for severe restrictions being imposed by elected politicians and not by unelected medical officers. But as I explained to Radio Canada, which published an excellent analysis of Dr de Villa’s position, the City of Toronto was (as far as I could tell) flatly wrong about its legal authority.

Under the Health Protection and Promotion Act, RSO 1990, c H.7, the medical officers of health in the province — Dr de Villa and her counterparts in cities and regions around Ontario — have sweeping powers. They can, in my view, certainly close restaurants and bars.

Section 22 provides that a medical officer of health may make an order where there is a communicable disease outbreak (which there certainly is). Such an order can (s. 22(4)) can extend to:

(a)  requiring the owner or occupier of premises to close the premises or a specific part of the premises;

(b)  requiring the placarding of premises to give notice of an order requiring the closing of the premises;

(c)  requiring any person that the order states has or may have a communicable disease or is or may be infected with an agent of a communicable disease to isolate himself or herself and remain in isolation from other persons;

(d)  requiring the cleaning or disinfecting, or both, of the premises or the thing specified in the order;

(e)  requiring the destruction of the matter or thing specified in the order;

(f)  requiring the person to whom the order is directed to submit to an examination by a physician and to deliver to the medical officer of health a report by the physician as to whether or not the person has a communicable disease or is or is not infected with an agent of a communicable disease;

(g)  requiring the person to whom the order is directed in respect of a communicable disease that is a virulent disease to place himself or herself forthwith under the care and treatment of a physician;

(h)  requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection

Lest you fear that these orders may only target individuals, not groups, s. 22(5.01) provides that class orders may be made: “An order under this section may be directed to a class of persons who reside or are present in the health unit served by the medical officer of health”.

The province’s chief medical officer of health also has sweeping powers under the legislation (Part VII) to respond to public health problems, but as far as I can tell these powers do not extend to invalidating anything done by the medical officers of health.

One feature of pandemic-related regulations has been placing broad restrictions on narrow statutory authority.

However, in Ontario, the statutory authority exercisable by medical officers of health is extraordinarily broad. It certainly seems to envisage the closure of classes of business. Indeed, in late September, Ottawa’s medical officer of health, Dr Vera Etches, issued an order under s. 22 confining all residents with runny noses to their homes.

Perhaps this order — and other orders which may be made under s. 22 — sweep too broadly or are unnecessary. Perhaps such orders should be made by accountable political actors rather than medical experts. Perhaps the legislation should provide that the economic consequences of public-health decisions should be taken into account before making s. 22 orders.

In my view, these are important and difficult questions. But there is no doubt about the authority of medical officers of health to go over and above provincial standards which, in their view, inadequately protect public health.

This content has been updated on November 13, 2020 at 16:27.