Appendix E: Processes for provincial declarations of emergency and orders

E.1. Provincial declarations of emergency

E.1.1. Declaration criteria

Two criteria must be met to declare a provincial emergency:

1. There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.
2. One of the following circumstances exists:
   1. The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay.
   2. The resources referred to in subparagraph i may be insufficiently effective to address the emergency
   3. It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph i can be relied upon. 2006, c. 13, s. 1 (4).

Despite the flexibility in the test, it is important that due consideration be given to an assessment of the resources normally available prior to declaring an emergency. For example, it may be possible to accomplish operational goals in the absence of legislative authority through agreements or consent. If so, there may not be a need to declare an emergency.

E.1.2. Process for recommending a declaration of emergency

The process leading to a provincial declaration of emergency will vary depending on the situation. (Legal advice will be available on the test for declaring an emergency). The following steps will typically precede a declaration:

1. The responsible ministry, as indicated in the Order in Council (having responsibility for the specific type of emergency, as assigned by Order in Council [Refer to Appendix C]) typically notifies the Provincial Emergency Operations Centre (PEOC) of the severity and urgency of the situation.
2. The Commissioner of Emergency Management (CEM) advises the Solicitor General of the situation.
3. The minister responsible (as applicable) and/or the CEM provide recommendations to the Lieutenant Governor in Council (LGIC) and the Secretary of Cabinet regarding the situation.
4. The LGIC decides whether an emergency declaration needs to be made. These discussions can take place via teleconferences, electronic mail, meetings etc.
5. A provincial declaration of emergency is made by the LGIC via an Order in Council, or the Premier in urgent circumstances.

Each emergency incident varies in severity. These recommendations are not meant to cover every emergency situation. They are intended to be used as a guide to assist the LGIC in taking action as the situation may dictate.

When a provincial declaration of emergency is made, the Premier (or minister designated to exercise the powers conferred on the Premier by the EMCPA,) will ensure that the federal government is informed. The declaration notification is passed to the PEOC, which will in turn inform the Regional Director, Public Safety Canada Ontario Region, of the emergency declaration.

E.1.3. Emergency orders criteria

Refer to section 6.6.3.3 for who may be a "decision maker" for making emergency orders.

The EMCPA permits emergency orders to be made if:

1. They are "necessary and essential."

The decision maker must believe orders are both "necessary" and "essential" in the circumstances. The use of both terms indicates a fairly high threshold for making orders. The determination that orders are "necessary and essential" is based on the belief of the decision maker, and involves the decision-maker determining that the emergency order is needed and required in the circumstances.

2. The "harm or damage will be alleviated by the order."

The decision-maker must determine whether it is reasonable to believe that the order will alleviate harm or damage. Thus, the order made must relate to the harm or damage it seeks to address.

3. "Making an order is a reasonable alternative to other measures that might be taken to address the emergency."

The decision-maker must believe the order represents a reasonable alternative to other measures that are available to address the emergency.

This part of the test requires the consideration of options that may be available before an emergency order is made.

The order must apply only to the areas where it is necessary and should be effective only for as long as necessary.

Orders generally prevail over all Ontario statutes and regulations, with limited exceptions. Importantly, the EMCPA states "despite subsection (4), in the event of a conflict between this Act or an order made under subsection 7.0.2 (4) and the Occupational Health and Safety Act or a regulation made under it, the Occupational Health and Safety Act or the regulation made under it prevails." 2006, c. 13, s. 1 (5).

It is important to note that this criterion does not require that all other alternatives be attempted prior to making an emergency order. In other words, it does not require that an emergency order is the only alternative available. Rather, it merely requires that the decision-maker give consideration to the reasonableness of an emergency order in relation to other options that may be available.