University of Sask. law professor says City of Saskatoon has 'arguable case' for COVID-19 bylaw

An associate professor at the University of Saskatchewan's College of Law says the City of Saskatoon is on stable legal ground in writing a bylaw designed to combat COVID-19.

On Monday, city council voted in favour of writing a bylaw that would limit gatherings in the city in attempt to shrink Saskatoon's COVID-19 caseload.

Prof. Felix Hoehn has written a book on municipal law in Canada and believes the proposed bylaw is within the city's powers.

"I think there is absolutely an arguable case to be made that the city has the power to act," Prof. Hoehn told CBC Radio's Saskatoon Morning.

"It presents an interesting legal question."

Saskatoon city council voted in favour of writing the bylaw after it asked the provincial government to bring in city-specific restrictions and was refused.

On Monday, Mayor Charlie Clark said the bylaw would limit social gatherings based on advice given by medical health officers.

He said the bylaw would have a limited 28-day timeframe and there would be penalties for people who broke it.

Throughout the process, the city solicitor has argued that powers surrounding public health orders fall to the provincial government.

LISTEN | Felix Hoehn spoke with host Leisha Grebinski on Saskatoon Morning 

While that's true, Hoehn said the issue is more nuanced. He said Saskatchewan's Cities Act gives cities the power to bring in general powers to pass bylaws around the safety, health and welfare of people.

"When you have, as Mayor Clark pointed out, a situation in the city that's affecting people's health, then that is a city purpose that affects the people in the municipality," he said. 

"And the city is taking some steps to address the public health and safety concerns."

Hoehn said the current situation is different than last year, when Regina and other municipalities tried to bring in their own restrictions under the province's Emergency Planning Act in the early days of the pandemic.

Eventually, the provincial government struck down those bylaws in favour of provincial measures, and amended the act to suspend any local emergency orders whenever there's a provincial order in place.

Hoehn said that the move sent a clear signal that the province didn't want a patchwork of local measures and wanted to be in charge of restrictions.

Ultimately, Hoehn said the provincial government could make a legal argument that the new bylaw from the city was invalid because it frustrates the province's aim to deal with the issue uniformly across the province.

He said the province could also change the Cities Act, and make it clear that cities are not able to make bylaws that affect public health orders in an emergency.

Saskatoon's city solicitor is expected to come back with a draft bylaw at a special city council meeting on Friday.