National state of emergency, COVID-19 and superior force: extraordinary powers of the state and municipalities

Mar 20th, 2020

By Laurent Debrun

On March 14, 2020, the Prime Minister of Quebec, François Legault, declared a 10-day public health emergency in all of Quebec. This extraordinary measure is taken pursuant to the Civil Protection Act (the Act). According to section 88 of the Act, the government may declare a national state of emergency in all of the territory of Quebec where, in an actual or imminent major disaster situation or other event that interferes with the life of the community to the point of compromising human safety, immediate action is required to protect human life, health or physical integrity which, in the Government's opinion, cannot be taken within the scope of the normal operating rules of the civil protection authorities or government departments and government bodies concerned or within the scope of Quebec's national civil protection plan.

The state of emergency declared by the government is valid for a maximum period of 10 days, after which it may be renewed for additional 10-day periods or, with the consent of the National Assembly, for maximum periods of 30 days.

This decision was triggered as a result of the Covid-19 pandemic, a natural phenomenon that causes or may cause serious harm to the general population and requires that the affected community take unconventional measures; the notions of natural phenomenon and national emergency correspond to the notion of a hazard, to a case of superior force.

Section 93 of the Act grants very broad powers to the government and creates a sort of suspension of laws which would otherwise impose serious constraints on the State. As such, the government may:

1°  order the implementation of the response measures provided for in the plan of the civil protection authorities, or those established by government departments or government bodies in accordance with section 60, and, where necessary, designate the person in charge;

2°  order the closure of establishments in the territory concerned;

3°  control access to or enforce special rules on or within roads or the territory concerned;

4°  where there is no safe alternative, order the construction or demolition of any works, the displacement of any property or the removal of any vegetation in the territory concerned;

5°  grant, for the time the Government considers necessary for the rapid and efficient conduct of emergency response operations, authorizations and exemptions provided for by law for an activity or an act that is required in the circumstances;

6°  where there is no safe alternative, order the evacuation or confinement of the inhabitants of all or part of the territory concerned and, if they have no other resources, make arrangements for adequate shelter facilities, the provision of food and clothing and the maintenance of security;

7°  order that power and water mains be shut off in all or part of the territory concerned;

8°  require the assistance of any person capable of assisting the personnel deployed;

9°  requisition the necessary rescue services and private or public shelter facilities;

10°  requisition food, clothing and other essentials and ensure distribution to disaster victims;

11°  ration essential goods and services and establish supply priorities;

12°  have access to any premises for the carrying out of an order under this section, to the site that is threatened or affected by the event or to the location of an activity or property that involves a potential risk of aggravating the event, in order to make a full assessment of the effects of the event on the risk or, as regards the site that is threatened or affected by the event, to ascertain the causes, development and potential effects of the event;

13°  make any expenditure or contract it considers necessary;

14°  decide to implement, in respect of the territory concerned, the financial assistance programs established under section 100.

The government may not be prosecuted for any act done in good faith in the exercise of such powers. Any person obeying an order given under section 47 or 93 is deemed to be confronted by superior force.

The Act states (sections 94 and 95) that the government must, within three months of an application filed by a person whose assistance or facilities are requisitioned under subparagraph 8 or 9 of the first paragraph of Section 93, to compensate such person on the basis of the current retail price for services or facilities of the same type as it stood immediately before the event. The same applies in the case of goods requisitioned pursuant to subparagraph 10 of the first paragraph of section 93, in which case the compensation is based on the current sales price of goods of the same type as it stood immediately before the event.

The government shall provide compensation for any damage caused in the exercise of powers under subparagraphs 4 and 9 of the first paragraph of section 93, except damage that clearly would have resulted from the event in any case. It should be noted that entitlement to compensation under section 94 or 95 is prescribed one year after the end of the state of emergency.

The Act grants the government the power to establish financial assistance or compensation programs for certain losses or damages suffered as a result of the disaster or event. It remains to be seen whether the pandemic will be considered as a disaster.

Certain legal provisions grant special powers or assign responsibilities to municipal authorities in respect of an emergency situation or a disaster. In the context of a national emergency, it is important for persons dealing with a municipality to be aware of such provisions so that they are in compliance with the laws and regulations and to know the limits of the powers and prerogatives of the municipality.

The mayor of a municipality may order expenditures and award contracts in the case of superior force. The mayor is vested with emergency powers as set forth in section 573.2 of the Cities and Towns Act. In the event of a superior force of such a nature as to imperil the life or health of the population, the mayor may order any expenditure deemed necessary and award any contract necessary to remedy the situation. In such case, the mayor must make a report of such action and the reasons therefor to the council at its next sitting. Section 937 of the Municipal Code of Quebec grants identical powers to the head of the council, namely the mayor of a local municipality or the warden of an RCM. Such emergency powers allow the ordering of expenditures and the awarding of contracts to remedy the situation of superior force. They likely have the same effects as the powers to order expenditures and award contracts in the case of a state of emergency pursuant to the Civil Protection Act with regard to protecting the health or life of the population. 

General guidance: During the Covid-19 pandemic and the state of emergency, the situation may become unmanageable, tracking expenses and filing invoices and other important documents may be a challenge. It is therefore recommended that a system be implemented to keep evidence of expenses and contracts that the State, including the municipality, may award you, as well as invoices and other documents that may be required to file a request for financial aid or to make an insurance claim.