The Legislative Roots of Ontario’s COVID-19 Failure

Chris Kaposy compares the legislative processes for declaring and managing the pandemic responses in Ontario and in Newfoundland and Labrador and suggests that empowering Chief Medical Officers of Health makes for better public health decision-making.

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The Ontario government has seriously mishandled the third wave of the COVID-19 pandemic. In late January, the Ontario COVID-19 Science Advisory Table warned that there would be a potential disaster if the province did not get COVID-19 variants under control. However, Premier Doug Ford’s government waited until April 7 to issue a stay-at-home order, as the province exceeded 4000 daily cases of the infection.

Ontario’s government regularly ignores advice from the Science Table. For example, the recent stay-at-home order included restrictions on outdoor activities, such as limiting the use of children’s playgrounds, despite the Science Table advocating for the opposite. The group’s scientific director almost quit because their recommendations in favour of public health measures that include access to safe outdoor activities were ignored by the government. Although Premier Ford quickly rescinded the order about playgrounds, he has kept other outdoor restrictions in place.

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Photo Credit: jermainewill/pixbay. Image Description: Queen’s Park, the Ontario Legislative Building.

To address the rise in cases, around April 21 the Science Table reportedly advised the government to focus 50% of its available vaccine supplies to 74 hard-hit areas. Instead, the government chose to redirect 25% of vaccine doses to 114 purported hot-spots, many of which were allegedly Progressive Conservative-voting ridings with comparatively fewer cases. The Solicitor General of the province of Ontario, Sylvia Jones (MPP for Dufferin-Caledon), justified the government’s allocation strategy by blaming the Federal government for not allocating enough vaccines to the province. There is a troubling hint of political influence at play in these pandemic response mis-steps.

It is odd that the provincial Solicitor General has a role in allocating Ontario’s vaccine supply. This cabinet-level office is held by a lawyer, not a public health expert, epidemiologist, or virologist. The legislation giving the Solicitor General this role may be partly responsible for the poor pandemic response in Ontario.

Ontario’s recent stay-at-home order was enacted under the provincial Emergency Management and Civil Protection Act (1990). Section 7.0.1 (1) of this Act allows the Premier or Lieutenant Governor in Council (the cabinet) to declare an emergency. Once an emergency has been declared, the Act empowers the cabinet, made up of elected officials such as the Solicitor General, to enact “Emergency orders” such as the stay-at-home order (sec. 7.0.2 (4)). This means that in Ontario, politicians with no special training in public health are ultimately responsible for enacting and managing emergency interventions meant to protect public health.

In contrast, in  Newfoundland and Labrador, the Public Health Protection and Promotion Act (2018), gives the Minister of Health “on the advice of the Chief Medical Officer of Health” responsibility for declaring public health emergencies (sec. 27.(1)). To be sure, the Minister of Health is an elected member of the House of Assembly. However, once a public health emergency has been declared, the authority to issue “special measures” rests solely with the Chief Medical Officer of Health, who is an unelected public health physician. These special measures can include stay-at-home orders, restrictions on travel into the province and movement within the province, and the allocation of resources such as vaccines. Newfoundland and Labrador declared a public health emergency on March 18 2020 and the emergency declaration has been extended every 14 days since then. So far, Ontario has gone into a provincial state of emergency three times, with the declaration of emergency being allowed to lapse in the summer of 2020 and in February 2021.

According to the latest tracking, the province of Newfoundland and Labrador has had about 200 total cases of COVID-19 per 100,000 people. Ontario has had about 3000 total cases per 100,000 people. At numerous points during the pandemic, the NL Chief Medical Officer of Health has been subjected to pressure by groups such as the Board of Trade to “open up” the province and loosen restrictions on economic activity. As an unelected official who has no duty to serve the interests of the business community, the Chief Medical Officer can disregard such advice when it does not advance public health interests. In comparison to the NL Chief Medical Officer, the Ontario cabinet is likely more susceptible to the influence of economic or commercial interests.

Newfoundland and Labrador’s success may not be entirely attributable to this difference in legislation. Any one explanation is surely an over-simplification. It is also possible for political leaders to govern responsibly and be guided by the advice of public health professionals. Likewise, political leaders can also undermine medical officers of health by removing them from their posts or threatening them with removal. So this is not to say that a system that gives more authority to public health professionals as opposed to politicians would be perfect. But leaving public health decisions in the hands of political leaders in the midst of a pandemic, as is the situation in Ontario, risks politicized decision-making that can undermine public health.

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Note (posted May 5 2021): By the end of April, the Ontario government followed the Ontario Science Table’s advice regarding the allocation of 50% of vaccine supplies to pandemic hotspots. This development means that at least one criticism levelled at the Ontario government in this commentary does not apply.

Chris Kaposy is an Associate Professor at the Memorial University Centre for Bioethics and an editor of the Impact Ethics blog. @ChrisKaposy