Quarantine legislation in Canada and the BCNDP proposes no-fault car insurance


On the show this week: The Canadian Quarantine Act, and BC Public Health Act powers to quarantine people or order treatment in response to the Wuhan Coronavirus, as well as an analysis of the NDP government’s latest proposal for no-fault car insurance.

The Canadian Quarantine Act and BC Public Health Act provide broad powers to control communicable diseases such as the Wuhan Coronavirus. These include the authority to prohibit entry into Canada by people who have been to a foreign country, or part of a foreign country, in circumstances where there is no reasonable alternative to prevent the introduction or spread of a disease that would pose an imminent and severe risk to public health.

The Quarantine Act imposes an obligation on people to disclose if they might have a communicable disease and the BC Public Health Act obliges people not to willingly cause a health hazard, or act in a manner that a person knows, or ought to know, will cause a health hazard.

If required, any private place may be designated as a quarantine facility for the purpose of isolating or detaining infected people for the purpose of protecting public health.

The latest proposal by the provincial NDP government to introduce a no-fault car insurance system is also discussed.

This is the second time an NDP government has attempted to introduce a no-fault system. On the last occasion, back in 1997, this was so unpopular the idea was abandoned.

A no-fault system is designed to save money by not spending any money determining who was responsible for an accident.

A careless diver, who causes a car accident, would be treated the same way as an innocent person they injure.

It is for this reason that no-fault system insurance systems are inconsistent with the idea that people should be responsible for the harm they cause.

While generally good news for careless drivers, who may save money on their car insurance, no-fault regimes can both remove incentives for people to drive safely, and inadequately compensate innocent people who are seriously injured.

Should this proposal for a no-fault system become law in British Columbia, people injured in car accidents could expect similar treatment to that provided by WorkSafeBC (WCB) and would have no meaningful ability to challenge decisions made by ICBC in court.

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.


Automated transcript of the show

Adam Sterling [00:00:00] All right. Legally speaking, here at, CFAX 1070, Michael Mulligan from Mulligan Defence Lawyers as we take a look at the latest legal stories of the week. Michael, good morning. How are you?

Michael Mulligan [00:00:09] I’m doing great. Not in quarantine. It’s great to be here.

Adam Sterling [00:00:12] Indeed. Indeed, as we monitor the situation very closely now. I was always struck by the enormous scale of the measures that are being undertaken in Hubei Province, Wuhan City, as well as surrounding cities in the People’s Republic of China. Here in Canada, if we try to quarantine our entire province, there’d be 5 million people here in B.C. or 15 million in Ontario. I don’t think we could do that because we can’t track everybody. We can’t know when people are moving or trying to drive their cars down the highway or buying plane tickets, train tickets or boat tickets. We don’t even have that capacity, even if our laws did allow it. But what do our laws allow in terms of quarantine or possibly infected people coming back from Canada being blocked? How does it all work?

Michael Mulligan [00:00:53] Well, our laws permit quite a bit. As a matter of fact, and there is legislation both federal called the Quarantine Act and provincially, we’ve got the Public Health Act, and both of those have fairly sweeping powers. Now, the idea of quarantining people in the Quarantine Act in Canada goes back a really long way. The first time we had a quarantine act was 1872, not far off of as far back as these things could go in Canada. And the current iteration of the Quarantine Act got Royal Assent in 2005 and it was spurred on by the SARS outbreak in 2003.

Adam Sterling [00:01:36] Post SARS, yeah makes sense

Michael Mulligan [00:01:37] We updated our quarantine act. So here we are. And that act provides for some pretty sweeping powers. Now, here’s one that people should know about is it’s actually one that imposes an obligation already on people. It’s under the heading travellers and its paragraph 15 and it provides that there is a duty to disclose communicable diseases if you’re coming back into Canada as a traveller. And it says this, any traveller who has reasonable grounds to suspect that they have or might have a communicable disease listed in the schedule. Presumably, this is listed or are infected with various things or was in close proximity with persons who have and are likely to have a communicable disease, again listed once again. Hopefully, this has been listed as an obligation to disclose that to a screening officer or quarantine officer. So the point is that if you’re coming into Canada and you have reasonable grounds to suspect you have a communicable disease, you have an obligation to speak up and say so, you are not permitted to sneak in, coughing and wheezing after your brief soldier into Wuhan, talk.

Michael Mulligan [00:02:57] And I’ve got I have pulled up the schedule. It’s alphabetized.

Michael Mulligan [00:03:00] Yes

Adam Sterling [00:03:01] Pulmonary tuberculosis, anthrax, Argentine hemorrhagic fever, Bolivian hemorrhagic fever, botulism. Brazilian hemorrhagic fever. Cholera, Crimea and Congo. Hemorrhagic fever, diphtheria. Ebola, hemorrhagic fever. Lassa fever. It goes on and on and on. So I guess you just have to be aware of this list and you have an obligation to disclose if you have reasonable grounds to believe you either have it or come into close contact with someone who had it.

Michael Mulligan [00:03:23] Yes. Speak up. I suppose we’ll call a call Section 15, the commonsense provision. When you think you’ve picked up a little bit of Ebola on your recent trip. You’re coming back into Canada. You know, maybe tell somebody, don’t just slip on in the head off to the Canucks game.

Adam Sterling [00:03:41] They’ve got smallpox on this list. I thought that was functionally extinct anyway.

Michael Mulligan [00:03:45] Well if you suspect your smallpox speak up the obligation to inform the officer.

Michael Mulligan [00:03:51] Now, if you speak up or even if you don’t speak up and you’re coming in, somebody who’s the screening officer would have authority to quarantine somebody. You know, if somebody is coming in on the flight from Wuhan, they land in Vancouver to refuel their coughing and wheezing, there is actually authorized for the person at the airport screening officer to isolate the person so that they don’t head off to some public event and infect other people. If you refuse that, there’s an authority for the police to arrest, you know, there’s a bad call you don’t want to get as that patrol officer, the guy with Ebola seems to have fled the Vancouver airport. You mind coming in, tackling him and bringing him back. That’s a very, very bad call.

Adam Sterling [00:04:31] How’d you like to be duty counsel when that one comes in.

Michael Mulligan [00:04:33] Yeah. I thinking about a guy. I think we’ll be on the other side of the glass.

Adam Sterling [00:04:38] Yeah.

Michael Mulligan [00:04:38] Deeply resistant Ebola guy who doesn’t want to listen to any directions, happily in Canada there are some provisions for a review of your review in court where somebody is going to have been detained. You know, if somebody, for example, or doesn’t like the fact they’re being required to remain in the military base for 14 days after they get back from Wuhan on the evacuation flight. There could be a process for a review in court about that. I suspect that’s not going on in Wuhan itself.

Adam Sterling [00:05:07] No.

Michael Mulligan [00:05:07] I don’t think sticking your hand up and asking for the court to look into the matters is getting you far in China. Now, here’s some other interesting powers in this the same act, that Quarantine Act.

Adam Sterling [00:05:18] Yes.

Michael Mulligan [00:05:18] There are powers to prohibit entry into Canada and they are very sweeping. And interestingly, there are some exceptions that are lacking that would cause some question about how this would interface with your constitutional right. Pursuant to Section 6 of the Charter. Well, maybe that’s a good place to start. So, you’ve got a constitutional right, the mobility of Citizen Section 6.

Adam Sterling [00:05:44] Yes.

Michael Mulligan [00:05:44] It says every citizen, that’s important, of Canada has the right to enter, remain in and leave Canada. Now, that’s, I think, a really important constitutional provision. And I must say I reflect on Section 6, maybe in a way only a lawyer is when visiting other countries where you frequently need to ask permission to leave. Right. Even some sort of Western countries that you sort of you show up at the border and there’s an outgoing border check ratio with your card. And, you know, please, kind sir me, I leave this country and you appreciate that the answer may be yes or no, right? Yeah, you should note that right. When you are leaving Canada, when you pull up to the peace arch crossing, there is no Canadian official standing there saying, who are you and where do you think you’re going? The only person you’re speaking to is the person who is the representative of the country you’re going into. That’s really important. Now, that brings us back to prohibiting people from entering Canada. Now, there are some particular powers that are referred to as emergency orders, and they can be made initially by a minister, federal minister, or after a period of 14 days. It’s got to be confirmed or the order can be made by the governor and council and it can prohibit the entry into Canada of any class of persons who have been to a foreign country or a specified part of a foreign country. If the governor and council is of the opinion that the list of things there’s an outbreak of a communicable disease in the foreign country, yes, the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada. That’s a judgment call. C, the entry of members of that class of persons into Canada may introduce or contribute to the spread or communicable disease in Canada. And D, no reasonable alternative to prevent the introduction or spread of the disease are available.

Adam Sterling [00:07:41] That’s interesting.

Michael Mulligan [00:07:42] So those are all the criteria there are certainly some things to be argued about there. Right. But broadly speaking, there is authority for the initially the minister or the governor and council to say things like, you know, sorry, this disease has ravaged this country or this place. Sorry, nobody from there can come in now that, of course, is going to but up against Section 6, what happens to the Canadian, who is the hapless traveller to the place where there is the terrible fill in the blank Ebola outbreak, outbreak? Who shows up and says, oh, my God, let me in. I’m Canadian. Don’t leave. Don’t leave me there.

Adam Sterling [00:08:17] It’s not going to happen. But trade for for.

Michael Mulligan [00:08:19] Right?

Adam Sterling [00:08:19] Yeah.

Michael Mulligan [00:08:20] There would be a tension between that power to refuse entry to anyone, including citizens and the Canadian citizen saying, hey, let me back in. So, there are really broad powers there. And my expectation is that those things aren’t completely in the abstract at the moment. No doubt those are the kinds of things which are considered when there are all these reports of things now that this.

Adam Sterling [00:08:44] Measles is on the schedule.

Michael Mulligan [00:08:45] Yeah.

Adam Sterling [00:08:45] I wouldn’t expect it to be there. But ordinary measles, it seems, is one of them. Now, the Coronavirus that will hunt variant is not on this schedule. So, it would it have to be added or what would happen?

Michael Mulligan [00:08:55] My advice would be you probably want to update the schedule. Now, if what’s online is current, of course, is not always current.

Adam Sterling [00:09:01] True. It might not.

Michael Mulligan [00:09:02] It might not be. But if they haven’t added that to list, it would seem to me you probably want to, in addition to the obvious moral obligation, when you show up, when you think you have the Coronavirus, probably it makes sense to add to the list. So yeah, you’re actually required to say so and not just slip into the country. Now that’s the federal regime. That’s not it. We like to belt and suspenders everything. So, we also have in B.C, the Public Health Act, which has a whole bunch of other powers. Some of them very interesting. One of them, for example, is Section 26 of the British Columbia Public Health Act, permits the minister of health to designate a place as a quarantine facility. If the minister reasonably believes that the temporary use of the place for the purpose of isolating or detaining infected persons is necessary to protect public health. And then the person has control of the place designated as a quarantine facility, may must provide the place to the minister or medical health office, so any place you can have the minister say, look, there’s a terrible outbreak. Sorry, your hotel is the quarantine facility, everyone else out. That’s where people are going to be staying. So, there’s a power to take over private property, to turn them into a place of quarantine. There are other powers that are afforded by that piece of provincial legislation. Here’s another one. This doesn’t require the list says this Section 50, a person must not willingly cause a health hazard or act in a manner that the person knows or ought to know will cause a health hazard. So that would also, I expect, to capture somebody who thinks they had the Ebola virus and decides that’s a good idea to head off to the cocktail party to start double-dipping in the, you know, the chip bowl or whatever. Right. So, your caught by that as well. So, speak up. And then there is also a provision to order people to undertake various preventative measures, which is an interesting thing. So it’s this emergency preventative measure, Section 56, a provincial health officer or medical health officer may in an emergency order a person to take preventative measures within the meaning of Section 16, including ordering a person to take preventative measures a person could otherwise avoid making or objecting to under this section. So those include things like this, if there is an emergency, I always find that language funny because you often see on the news various mayors and officials coming out saying, I do declare an emergency. And I often think to myself, well, what is the real effect of coming out and saying, I do declare. But in this case, if there is if you declare an emergency, you can order people to do things like be treated or vaccinated, like it or not, get in there and get that measles vaccine. I don’t care if you don’t want it, get in there and take it. You can order a person to wear a type of clothing or protective equipment so you can say you must put a mask on. For example, you could order somebody to wear protective clothing, take off clothing. You can order all sorts of things to take preventative medication, to wash, undergo disinfection or decontamination. So, there are really broad and really sweeping powers that are available. Also, interestingly, there are some exceptions in an emergency. Things like there is an exemption from the Freedom of Information and Protection of Privacy Act. And I suspect that would be there, so that, for example, if you had Typhoid Mary and you’ve identified her, you could yell out, there she is. This is who it is. You know, stop. Don’t show up at the party she’s catering. Bad idea. Whereas otherwise, you might run into difficulties releasing the private medical information about the infectious person who’s decided to go out and continue shaking hands and making friends. So, in and again in an emergency, there’s some power to do that. Also, in both these Acts.

Adam Sterling [00:12:50] Mm.

Michael Mulligan [00:12:50] When you look at the sort of the broad array of things that are emergency powers, they are very broad and no doubt they need to be very broad because when you draft these things, you don’t know what the next infective agent is going to be or what you might need to require people to do. Be that put on sunglasses, get some sort of disinfection, remove your clothes or put on a suit. You don’t want to try to in advance pick out all the various things that would be required. And when you look at the very broad language used, you know, it would be a real stretch to say, for example, you wish to quarantine a whole city. You would really be stretching some of the language about things that one might do in an emergency. But hopefully, we don’t come to that. I must say, watching their response to this Chinese decision to quarantine off, you know, a city initially of eleven million people, you could imagine what the response would be in a country. Let’s say the only U.S. made the decision. We’ve ordered everyone to stay in Chicago. You know, what is that looking like? You know, it’s it’s amazing. I must say on one level when you look at the reports from China that broadly speaking, people seem to have been complying with that right there. They don’t seem to be people fighting with the, you know, police at the border, you know, the police or they’re blocked off. Broadly speaking, it looks like people are kind of staying home, doing what they should. And, you know, that’s a I think a notable thing. I don’t know you’re getting that in every place. Maybe that sort of there’s some cultural factors there or the realization of how the state might respond to somebody stuck up their hands saying he had like a court application or making a run for it, I rather suspect that’s not going over well in China. But when you in Canada, look at the Quarantine Act or the Public Health Act, you know, you may well get that if you’re the police constable very unhappy phone call to go and tackle that Ebola victim who’s making a run for it from the Royal Jubilee Hospital or whatever it might be. So, let’s let’s hope it doesn’t come to that.

Adam Sterling [00:14:50] All right. Let’s take a quick break. We’ll be back in just a moment. Legally speaking continues on CFAX 1070. Breaking news. A news release hit my inbox approximately 240 seconds ago, transforming ICBC to deliver lower rates, better benefits, ministry of the attorney general and I quote, the government is transforming ICBC by removing lawyers and legal costs from the system to reduce rates and substantially increase care benefits. Making public auto insurance work for British Columbians again. This looks a whole lot like no-fault insurance. Michael Mulligan, we’re just digesting this as it breaks live. Any thoughts on what we’re seeing?

Michael Mulligan [00:15:26] Yeah. That’s certainly what it looks like is sort of the NDP trying again with the no-fault approach. They, of course, tried that a number of years ago and ultimately ran up on the rocks and it didn’t get implemented. The reason why it didn’t succeed last time and why I suspect they’re going to wind up with some pretty serious political headwinds this time is people broadly don’t like the idea that somebody could be completely reckless, terrible driver, crash into you, suffer no consequence themselves and be treated the same way you would. People generally don’t find that to be a fair model. And there’s no doubt you can save some money not sorting those issues out. If we say, for example, we don’t care whether the person who hit you was impaired or driving dangerously and we say we’re going to spend no time sorting that out, everyone will just be treated the same. There is no doubt you can save some money and not making that decision. But that has fairness implications. And I think people don’t like the idea that somebody who’s, for example, was drunk and ran into you and you become a quadriplegic is going to be treated exactly the same way you would in terms of getting benefits. And that person will suffer other than any criminal consequence, have no personal financial obligations to deal with any of that. That’s, I think, one of the problems. The other problem is people have some experience with systems like that. If anyone’s been through, for example, dealing with so-called WorkSafe B.C. WCB claim, that’s basically the sort of treatment one can expect. Right. Which was essentially hoping that unreviewable bureaucracy is going to treat you OK when you have no independent way to sort out how you’re being treated. People don’t much like that either. So, I suspect for those reasons, this may be very unpopular when people realize what it’s going to mean for their lives. My practical advice to people would be this. You might want to consider purchasing some private disability insurance if you don’t want to run the risk of being plowed down by somebody and having absolutely no meaningful recourse other than accepting whatever a government insurance company wishes to do for you, and I think that’s really at the core of why this proposal last time was so unpopular people don’t like the idea that innocent people who are injured are going to be treated the same as somebody who’s morally culpable, did something dangerous and hurt you. I think people broadly liked the idea that people should be responsible for their actions and don’t like the idea that we should all live in a fault-free, no-fault world where it just doesn’t matter how you behave.

Adam Sterling [00:18:22] In a previous discussion, we talked about breaching the standard of care of a reasonably prudent driver or having a criminal offence, voiding one’s insurance, making one financially responsible for the care of anyone that they injure. Would movement to a system such as this nullify that, or what would happen in that scenario?

Michael Mulligan [00:18:39] Likely. Yes, likely would then make no difference. So, for example, the local case that got attention with the driver of the Mercedes who hit the young girl who’s going to require a lifetime of care under our current model, the driver of the Mercedes is going to have personal financial responsibility for having caused the accident and will have to pay for that, under a no-fault model it doesn’t really matter whether your texting and driving or drunk or speeding or doing anything else. We don’t spend any money sorting out who’s responsible for that. We just say, fine, you know, whatever degree of help we’re going to provide to the young girl will provide the same to the driver of the other vehicle who caused the accident. And in fact, we’ll spend no time sorting out who caused the accident. That has other broad implications, I suppose, in terms of things like incentivizing people to behave in a responsible fashion. If you bear no personal responsibility for harm, you cause it’s going to disincentive people from behaving in a safe fashion. It’s like if you said, you know, ladder manufacturers are no longer responsible for injuries caused by their ladders. Guess what? You’re going to have a lot less safe equipment or whatever it might be. If you have no personal responsibility.

Adam Sterling [00:19:55] They would still be subject to criminal sanctions where appropriate. No criminal punishments where? Appropriate, though, yes?

Michael Mulligan [00:20:00] Yes, that’s true.

Adam Sterling [00:20:01] OK.

Michael Mulligan [00:20:01] But the financial part of it is significant.

Adam Sterling [00:20:04] And you hurt. OK.

Michael Mulligan [00:20:05] That’s right. You could, it would be. Broadly speaking, these sorts of changes would be good news if you’re in the sort of person who might cause an accident. And bad news, if you somebody who winds up getting injured in an accident, it would mean that you would have no meaningful recourse against the person who caused it. And you would be subject to whatever the government entity wishes to do for you, sort of like everyone is now subject to WCB sort of treatment in the event that your injured driving.

Adam Sterling [00:20:37] Well, Michael Mulligan, we always appreciate the benefit of your knowledge and insight on this program in this case. So, we got this release at ten forty-nine AM. And do you and I was talking about it just over two minutes later or three minutes later on the air? Anything else you want to touch on? We’ve got about 90 seconds left for today.

Michael Mulligan [00:20:51] Well, I guess they would say the other thing I’d say about this, this is the sort of thing. There’s been some, I think, sort of rumours in the air about whether an election might be forthcoming. This could be the sort of issue which might be a trigger for that last time, when the NDP proposed a no-fault system that was tremendously unpopular amongst groups, including disabled community people who were injured by drivers. And it may be that this is the sort of thing which is an inflection point. There may be some questions to be asked, for example, you know, what do Andrew Weaver and the remainder of the Green Party think about this model? Is this something they want to tie themselves to? And is it the sort of thing which might produce an election?

Adam Sterling [00:21:40] I suspect they will be asked that question momentarily if they have not already had it asked of them in the last 10 minutes or so. Michael Mulligan, thank you for your time, as always.

Michael Mulligan [00:21:47] Thank you.

Adam Sterling [00:21:47] All right. Take care.

Automatically Transcribed on February 7, 2020 – MULLIGAN DEFENCE LAWYERS