Public Health Act enforcement, duty of honest performance, and a solitary confinement class action

This week on Legally Speaking with Michael Mulligan:

Provisions of the British Columbia Public Health Act allow for the enforcement of public health orders by means other than the imposition of fines. 

If someone is refusing to comply with an order to remain in quarantine or isolation, a judge can issue a warrant for their arrest and to require that they remain detained in a location and on conditions determined by the judge. When someone is arrested pursuant to such an order there is provision for the detention to be reviewed by a judge as soon as reasonably possible, but no later than 7 days from the start of the detention. 

Section 114 of the Public Health Act also allows for the provincial government to make regulations that would require people to participate in preventive measures, such as receiving a vaccine or to prohibit people who have not taken a preventive measure from entering a place, working with a class of people, or in a class of occupations.

While the provincial government has indicated that it does not plan to require vaccinations, it would not be surprising if people who chose not to be vaccinated would not be permitted to work at or attend, places where people at high risk from COVID-19 are such as hospitals or long-term care homes. 

Also on the show: a recent case from the Supreme Court of Canada has expanded the concept of the “duty of honest performance” with respect to contracts. 

The case involved a small property maintenance company in Ontario that had a contract to perform winter maintenance for a condominium complex. The contract said that it could be cancelled with 10-days of notice. Despite this, members of the condominium complex knowing mislead the owner of the maintenance company suggesting that the contract would be continued. 

The Supreme Court of Canada concluded that, while there was no obligation to give more than 10-days of notice, intentionally misleading a party to the contract was not permitted by the duty of honest performance. In reaching this conclusion the majority of the Supreme Court of Canada considered the civil law abuse of rights framework and used this to inform their analysis of the common law duty of honest performance. 

Finally, on the show, a class action was certified against the Province of British Columbia for harm caused by keeping inmates in solitary confinement. 

Two groups of imamates were included: those who were kept in solitary confinement for at least fifteen consecutive days, and those who suffered from mental illness and were placed in solitary confinement. 

An argument by the Province of British Columbia that provincial jails don’t have “solitary confinement”, but rather “separate confinement” or “segregation” was not accepted by the court. 

Follow this link for a transcript of the show and links to the cases discussed.