Tierney Stauffer LLP Lawyers

With the federal government’s mandatory hotel stay regulation for air travellers arriving in Canada coming into effect last month, many people and businesses have been impacted by the additional challenges and costs presented by the rule. In addition to the associated fees, which can total $2,000 per person, there are other challenges, including a strict limit on the airports accepting international flights. As of now, only four airports in the country are permitted to accept inbound flights from outside of the country, creating additional strain for not only families and individuals, but businesses and employees as well.

A legal challenge has been launched against the rule, as it may infringe certain fundamental rights under the Canadian Charter of Rights and Freedoms (the “Charter“). The Canadian Constitution Foundation as well as five individual applicants turned to the Superior Court of Justice of Ontario, to terminate the COVID-19 quarantine measure.

COVID-19 Mandatory Hotel Stopover

COVID-19 prevention measures have comprised several new orders and regulations targeting travellers entering Canada. A recent addition to the collection of federal coronavirus prevention orders is OIC 45 – Minimizing the Risk of Exposure to COVID-19 in Canada Order (OIC 45). The new order mandates several COVID-19 specific rules including mandatory COVID-19 testing prior to entry into Canada and a three-night stay in a government-authorized hotel, regardless of citizenship.

The COVID-19 travel restrictions and rules have gradually increased in their stringency.  Beginning January 7, 2021, airline travellers (above five years of age) entering Canada were required to provide proof of a negative COVID-19 test to the airline prior to boarding a Canada-bound flight. This rule was accompanied by the requirement to quarantine for 14 days upon arrival. The COVID-19 travel rules became more rigorous by February when all air travellers entering the country were required to undergo two rounds of COVID-19 testing, one before leaving the airport, and another toward the end of the 14-day mandated quarantine. Some Canadians as well as the Canadian Constitution Foundation have taken issue with the government’s newest addition to this rule: the obligation to stay in a government-authorized hotel for three nights upon entering Canada by air.

Costly and Unconstitutional Mandatory Hotel Policy?

The hotel policy is a costly measure, requiring travellers to pay out of pocket for the mandatory hotel stay, which can amount to hotel fees totalling $2,000 or more per traveller.

“The quarantine hotel policy is an unjustified limit on the rights of Canadians’ Charter-protected right to enter Canada. The $2,000 cost per traveller is exploitive and punitive, and some of the hotels have been operating with inhumane conditions,” Noted Christine Van Geyn, Canadian Constitution Foundation’s Litigation Director.

The legal challenge takes issue with OIC 45’s mandatory hotel stopover rule on the grounds that it violates several Charter-protected rights, namely, the right to enter Canada, the right to liberty, the right to be free from arbitrary detention, and the right to be free from cruel and unusual punishment.

The Charter’s Section 6 mobility rights, which guarantees that every Canadian citizen has the right to enter, remain in and leave Canada has been cited by other organizations during the course of various provincial COVID-19 measures. As Section 6(2) also guarantees citizens and permanent residents rights to move between provinces, certain organizations have taken issue with measures preventing non-residents of certain provinces from entering other provinces. For example, the Canadian Civil Liberties Association took issue with the government of Newfoundland and Labrador’s COVID-19 travel restrictions this past May, arguing, among others, that such restrictions may not satisfy the legal requirement of being reasonable and demonstrably justified.  

The Canadian Constitution Foundation wrote that it is seeking “an urgent injunction,” as well as a declaration that the hotel stopover quarantine order is unconstitutional, in addition to monetary damages. Of course, these are unprecedented times, and so it remains to be seen how the regulations will hold up under judicial scrutiny.

Ontario Promises Increased Inspections of Businesses

Ontario has seen its fair share of orders and new restrictive measures affecting employer and employee rights and responsibilities. In recent months, the Ontario government has passed orders restricting which businesses may remain open, as well as several other emergency measures that were officially in place until at least March 8, 2021.

The Ontario government has promised to increase inspections of businesses across the province to ensure COVID-19 safety measures are followed. For example, the province has recently revealed that it hired over 100 new occupational health and safety inspectors to ensure employees and members of the public are protected. To date, provincial offences officers have conducted over 13,374 COVID-19 workplace inspections and investigations in the province.

“As the province continues to reopen, we need businesses of all sizes to do better as there are no shortcuts to safety,” announced Monte McNaughton, Minister of Labour, Training and Skills Development. According to the Ontario government news release, since the beginning of the new year, provincial offences officers have issued some 9,480 orders, 373 tickets, and have stopped unsafe work 15 times.

“Throughout the pandemic, we have been actively working with our business community to educate owners and operators about their responsibilities to ensure that all public health measures are in place and rigorously followed to protect public safety. When workers and employers learn how to stop the spread of COVID-19 in their workplaces, our entire community benefits,” Durham Region Medical Officer of Health, Dr. Robert Kyle, noted.

Contact Tierney Stauffer LLP to Discuss Your COVID-19 Legal Issues

The ever-changing regulations continue to impact businesses, employers and employees throughout Ontario and it can be difficult to stay on top of the guidelines. Our experienced lawyers can advise you on how best to protect your rights in the challenging landscape created by the COVID-19 pandemic. Contact Tierney Stauffer LLP in Ottawa & Eastern Ontario for experienced advice on legal matters concerning the management of your business during COVID-19, civil litigation, and more. Call the firm at 1-888-799-8057 or contact them online to schedule a confidential consultation.

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