Guest Post: Can a non-profit board ignore its policies during social distancing? A deep dive

Gabrielle Battiste, BA, JD

Partner, LadderUp Consulting Ltd.

The Question:

Can a board ignore its policies and bylaws around meeting in person during
social distancing?

The Short Answer:

The board must still follow its bylaws and policies to the extent possible without breaching provincial and city orders under various statutes. However, in the majority of circumstances, a board may need to temporarily modify its behaviour in contravention of its bylaws and policies (only around meeting in person) to comply with current legislative restrictions.

The Long Answer:

Background

All individuals in Alberta are bound to follow the Public Health Act when there is a Provincial Order declaring a state of Public Health Emergency. As of March 17, 2020, such an order is in place and is in effect until June 15, 2020. There have been a number of further Orders that must be followed by every person in Alberta. These are all orders that are applied to individuals and not to organizations. 

Additionally, both individuals and businesses (including non-profits) are bound to follow municipal bylaws to the extent that they apply to those individuals or businesses/non-profits. 

Finally, all businesses and non-profits must follow Alberta’s Occupational Health and Safety Act and regulations about keeping a safe workplace. If that workplace cannot be frequently sanitized to the highest standard and kept free of individuals who may have COVID-19 or its symptoms (which are continually evolving), then people cannot attend that workplace. 

The specifics also depend on if an organization is registered under the Companies Act or the Societies Act. There is no Emergency Measures Act for non-profits that gives them extra powers like municipalities, for instance. Even in municipal cases, before states of emergencies are declared and special powers are used, certain corporate steps must be taken. Under both the Companies Act and the Societies Act, there are penalty provisions for not following your bylaws. 

Societies Act – Rescission and alteration of bylaws

15(1)  The bylaws of a society shall not be rescinded, altered or added to except by special resolution of the society. 

(2)  No rescission or alteration of or addition to a bylaw has effect until it has been registered by the Registrar. 

(3)  If the Registrar is of the opinion that a bylaw is not in accordance with the application for incorporation or that it contains anything contrary to law, the Registrar shall refuse to register it. 

Government legislation does necessarily trump bylaws and policies just because it is the government. It depends on exactly what the legislation says and how it pertains to each organization and its activities specifically. Application of any piece of legislation or any order will vary depending on the nature of each organization and its related activities and individual staff members. 

In order to understand what applies and to whom, it’s necessary to go through a bit of legislative history regarding COVID-19 in Alberta. Under the Public Health Act, the Chief Medical Officer of Health (CMOH) and the Minister of Health have very broad powers under certain sections in the event of a public health emergency. The Chief Medical Officer initiated an investigation into COVID-19 and determined that it fit the requirements and constitutes a public health emergency. 

The Emergency Management Act allows the Province to declare a State of Emergency (s. 18) for all of Alberta, which happened effective March 17, 2020. Under s. 18(5.1): 

(5.1)  Unless otherwise provided for in the order for a declaration of a state of emergency, where

(a) an order for a declaration of a state of emergency is made, and

(b) there is a conflict between this Act or a regulation made under this Act and any other Act or regulation, other than the Alberta Bill of Rights or the Alberta Human Rights Act or a regulation made under either of those Acts,

during the time that the order is in effect, this Act and the regulations made under this Act shall prevail in Alberta or that part of Alberta in respect of which the order was made.

The Emergency Management Act trumps any other legislation in Alberta. Under s. 19(1)(b) of the same Act, the Minister can also  authorize or require a local authority to put into effect an emergency plan or program for the municipality. 

Those emergency plans/programs will also trump anything else, as they are an extension of the Provincial Act. Each City must follow the rules outlined in the local Act.

Provincial Orders

On March 16, 2020, the CMOH issued an order under s. 29(2.1) of the Public Health Act “to prohibit a person from attending a school location for any period and subject to any conditions that I consider appropriate, where I have determined that the person’s engaging in that activity could transmit an infectious agent.” This order shut down attendance at all schools and day cares.  

On March 17, 2020, the Lieutenant Governor in Council made Order in Council 080/2020 under s. 52.1(1) of the Public Health Act declaring a state of public health emergency in Alberta due to COVID-19 and the significant likelihood of pandemic influenza; and the order has effect for 90 days. The order expires on June 15, 2020. 

On March 17, 2020, the CMOH issued an order under s. 29(2.1) of the Public Health Act, “to prohibit a person from attending a location for any period and subject to any conditions that I consider appropriate, where I have determined that the person’s engaging in that activity could transmit an infectious agent.” This order pertained to all persons in Alberta and was geared towards mass gatherings of more than 50 attendees. The order did not prevent non-profits from holding board meetings in person.

This order stated that: 

All persons in the Province of Alberta are prohibited from attending the following locations or places where the activities listed are taking place:  

  1. Mass gatherings of more than 50 attendees. This includes places of worship, gatherings and family events such as weddings. Grocery stores, shopping centres, health care facilities, airports, the legislature and other essential services are not included. 
  2. Public recreational facilities and private entertainment facilities, including but not limited to, gyms, swimming pools, arenas, science centres, museums, art galleries, community centres, children’s play centres, casinos, racing entertainment centres, and bingo halls. 
  3. Bars and nightclubs where minors are prohibited by law. 

    The above prohibitions do not apply, or apply with modifications set out below, to the following locations or places where the activities listed are taking place: 
     
  4. Albertans can attend restaurants, cafes, coffee shops, food courts and other food-serving facilities, including those with a minors-allowed liquor license. Such locations are limited to 50 per cent of their stated capacity, up to a maximum limit of 50 persons within a given location or place.
  5. Take-out, delivery or drive-through food services are permitted. Licensed facilities are also be permitted to deliver liquor. 
  6. Not-for-profit community kitchens, soup kitchens and religious kitchens are exempt, but sanitization practices must be utilized and followed. 

On March 20, 2020, the CMOH issued another order under s. 29(2.1) of the Public Health Act, specifically pertaining to persons attending health care facilities. 

On March 25, 2020, the CMOH issued another order under s. 29(2.1) of the Public Health Act, pertaining only to individuals who are confirmed to have COVID-19 or who are exhibiting specific symptoms and mandated isolation. 

This order prescribed the following: 

  1. Any person who is a confirmed case of COVID-19 must be in Isolation for a minimum of 10 days from the start of their symptoms, or until symptoms resolve, whichever is longer.
  2. For the purposes of this Order, Isolation includes the following restrictions:
    • remaining at home, and 2 metres distant from others at all times;
    • not attending work, school, social events or any other public gatherings; and
    • not taking public transportation. 
  3. Subject to section 9, the following persons must be in Quarantine for a minimum 14 day period:
    • a person returning to Alberta after having travelled internationally; and
    • a close contact of a person who is confirmed as having COVID-19. 
  4. For the purposes of this Order, Quarantine includes the following restrictions and requirements:
    • remaining at home;
    • not attending work, school, social events or any other public gatherings;
    • not taking public transportation; and
    • watching for symptoms, as set out below, in themselves or in a family member.
  5. For the purposes of this Order, a “close contact” is defined as a person who: 
    • provides care, lives with, or has close physical contact, without consistent and appropriate use of personal protective equipment, with a person who is confirmed as having COVID-19; or 
    • comes into direct contact with the infectious body fluids of a person who is confirmed as having COVID-19.
  6. If a person identified in section 3 experiences symptoms, as set out below, during the 14 day period of Quarantine, they must be in Isolation for a minimum of 10 additional days from the start of their symptoms, or until symptoms resolve, whichever is longer, but at no time may a person described in section 3 be in Quarantine for less than 14 days.
  7. Subject to section 8 of this Order, any person who is exhibiting any of the symptoms as set out below, which are not related to a pre-existing illness or health condition, must be in Isolation for a minimum of 10 days from the start of their symptoms, or until the symptoms resolve whichever is longer:
    • cough;
    • fever;
    • shortness of breath;
    • runny nose; or
    • sore throat. 
  8. Persons described in section 7 of this Order, are not required to be in Isolation in accordance with section 7, if those persons test negative for COVID-19 and have no known exposure to COVID-19. 
  9. Persons described in section 3 of this Order, are not required to be in Quarantine in accordance with section 3 if they are:
    • essential services workers;
    • who are designated by their employer as being essential; AND
    • where a medical officer is satisfied that the presence of the person in a public place would involve reasonably low risk to the public health. 

On March 25, 2020, the Minister of Health temporarily changed the Public Health Act (until August 14, 2020) pursuant to s. 52.1(2) to broaden the definitions in s. 33 of communicable disease and close contact so that any person falling in the below categories must not be in any public place other than a hospital. 

References to “person infected with a communicable disease” and “person who is suffering from a communicable disease” are read to include the following persons: 

  • a person returning to Alberta after having travelled internationally; 
  • a close contact of a person who is confirmed as having COVID-19 and 
  • any person exhibiting any of the symptoms listed below which are not related to a pre-existing illness or health condition: 
    • cough; 
    • fever;
    • shortness of breath; 
    • runny nose; or
    • sore throat. 

The application of section 1 of the Public Health Act is modified to add the definition of the term “close contact” to section 1 of the Act: 

“close contact” means:

  • a person who provides care, lives with, or has close physical contact, without consistent and appropriate use of personal protective equipment, with a person who is confirmed as having COVID-19; or
  • a person who comes into direct contact with the infectious body fluids of a person who is confirmed as having COVID-19. 

Section 33 of the Public Health Act states that: 

(2)  No person who is suffering from a communicable disease for which isolation or quarantine is required under the regulations shall remain or be permitted to remain in any public place, other than a hospital or other place approved under subsection (1), unless a medical officer of health is satisfied that the presence of the person in the public place would involve no risk to the public health. 

On March 27, 2020, the CMOH issued another order under s. 29(2.1) of the Public Health Act, stating that the gathering of individuals for any reason, either indoor or outdoor, in excess of 15 people is prohibited unless those individuals are inside and are all part of the same household (ie. live together under one roof). Any gatherings of 15 or fewer people must follow social distancing rules in that gathering (ie. each person remaining 2 metres apart from the others).

On April 2, 2020, the Public Health Act was amended by the Public Health (Emergency Powers) Amendment Act to allow police officers to accompany and assist someone authorized by the Province to inspect public or private properties and enforce all Provincial Orders (ie. social distancing). A person who contravenes the orders of the Minister OR the Medical Health Officer is now subject to increased fines of “not less than $100 and not more than $5000 for each day or part of a day during which the contravention occurs or continues” or, depending on which section of the Act is used, now subject to increased fines of “not more than $100,000 in the case of a first offence and $500,000 in the case of a subsequent offence.” 

On April 4, 2020, the CMOH issued another order under s. 29(2.1) of the Public Health Act stating that the members of the same household are exempt from the social distancing requirements whether indoors or outdoors.

City of Edmonton Bylaws 

The Cities, Towns, Hamlets, etc., under the Emergency Measures Act and the Local Authority Emergency Measures Regulation have very broad powers once a state of emergency has been declared.   

The City of Edmonton has an Emergency Management Bylaw that came into force on February 3, 2020 in compliance with a new COVID-19 Provincial Regulation under the Emergency Measures Act. Both the Bylaw and the Act/Regulation require an Emergency Management Plan to be in place.  

On March 20, 2020, the City’s Emergency Advisory Committee under the newly formed Emergency Advisory Agency, declared a State of Local Emergency. Mayor Iveson is the Chair of that Committee.

On March 26, 2020, the City’s Emergency Advisory Committee renewed the City’s State of Emergency for another seven days. 

On April 2, 2020, the City’s Emergency Advisory Committee renewed the City’s State of Emergency for another seven days.

Likely, the City’s Emergency Advisory Committee will keep renewing its State of Emergency for short periods, so it’s the responsibility of organizations to keep watch on the status of that order. Additionally, Interim City Manager and Director of the City’s Emergency Management Agency Adam Laughlin has issued two orders to date that impact all Edmonton citizens by restricting the ability for more than one person to hire transportation at the same time.

On March 26, 2020 and April 1, 2020, the Director of the Emergency Management Agency issued two Orders that are applicable to all of Edmonton. 

The Orders state in summary that: 

  • That any individual with a confirmed or suspected* case of COVID-19 must immediately self-isolate 
  • That “suspected case” means a situation where an individual has returned from travel outside Canada; has been in close contact with another individual with a confirmed case of COVID-19; or has been directed for testing based on the Alberta Health Services self-assessment tool.  
  • That, while in any public space that remains open in the City of Edmonton, including but not limited to parks, shopping centres, and retail stores, individuals must take all reasonable steps to maintain a distance of at least two metres between themselves and any other individual, except individuals they reside with or have close personal relationships with. 
  • Failure to comply with this Order may result in enforcement to the full extent of the law, which may include fines and penalties.  
  • That all Personal Services Shops providing services related to the care and appearance of the body and Body Rub Centres, as those businesses are defined in the Business Licence Bylaw, Bylaw 13138, are immediately closed. 
  • That, generally, no more than one person at a time may rent a car for hire (with some exceptions listed).

 

To Summarize

There is no legal requirement for non-profits to stop their in-person board meetings or AGMs if those meetings have 15 or fewer people and are not held in a public place or other business place that has been mandated to be closed. Any individuals attending a board meeting MUST remain at least two metres apart from one another at all times. 

If your non-profit board meeting space cannot accommodate this requirement, then you CANNOT hold your board meeting in person.

Additionally, the Province has these non-legal suggestions on its website: 

All Albertans must take personal steps to help prevent the spread of COVID-19. To protect yourself and others practice social distancing. Social distancing involves taking steps to limit the number of people you come into close contact with. It can help you reduce the risk of getting sick. 

This is not the same as self-isolation. You do not need to remain indoors, but you do need to avoid being in close contact with people. 

We are asking all Albertans to practice social distancing to help protect themselves and limit the spread of COVID-19. 

To protect yourself and others: 

  • keep at least 6 feet (the length of a bicycle) from others when going out for groceries, medical trips and other essential needs
  • limit the number of times you leave your home for errands
  • try to shop at less busy times
  • order online to have groceries or other items delivered if possible
  • go for a walk in your neighbourhood or park while maintaining distance from others
  • avoid overcrowding in elevators or other enclosed spaces
  • follow Alberta’s mandatory restrictions on mass gatherings
  • wash or sanitize your hands after touching communal surfaces

In no way does this limit the ability of a board to meet in person if its bylaws and/or policies so demand.  

However, boards also have a duty to provide a safe workplace for employees and board members under the Alberta Occupational Health & Safety Act. If a board cannot do this by way of necessary sanitary means, then staff/directors cannot attend the workplace.