Reopening Society: Thoughts on Some Legal Questions

Yesterday (April 27, 2020), the Ford government released “A Framework for Reopening our Province“, a three-stage process that is likely to be applicable until a vaccine is available. The Framework is based on some important principles and it includes on-going reassessment and review to ensure the spread of COVID-19 has not recurred. With this Framework in mind, as well as steps already taken elsewhere, it is worth considering the kinds of legal questions that might arise as we seek to reopen our society fully.

The Framework has been criticized as not identifying dates when various activities might begin again; however, dates at this stage would be inconsistent with the structure and purpose of the Framework, which is a “how” to decide when to open document, not a “when” we’ll open plan. It identifies the principles to govern reopening and the criteria that must be met before activities of different kinds might begin again.

The Framework’s principles reflect a commitment to public health and respect for scientific and health expertise. Paramount will be “[p]ublic health and protecting the people of Ontario, especially those who are most vulnerable and at high risk”; the plan will be reliant on science, public health data, defined criteria and consistent measures; as the plan is gradually implemented, there must be “sufficient health system capacity” to respond to recurrences of COVID-19 infections; everyone will be advised what to do as reopening proceeds. there will need to be “rigorous testing, timely contact tracing and case management”; whatever measures are implemented, will be implemented “quickly, clearly and efficiently” and “the need to tighten or restrict measures if surges or further outbreaks occur” (my emphasis).

The Plan does have criteria to determine when to ease some of the current restrictions. For example, in order to begin, there must be “[a] consistent two-to-four week decrease in the number of new daily COVID-19 cases”, “[a] decrease in the rate of cases that cannot be traced to a source” and “[a] decrease in the number of new COVID-19 cases in hospitals”. This last is interesting, since it is believed that not all COVID-19 cases end up in hospital; thus broader and perhaps carefully designed random testing may be required. The Framework does recognize the need for new ways of testing and contact tracing, as well as “ongoing testing” of “suspected” cases, especially of vulnerable populations. (my emphasis) I note that testing is currently too low, with the consequence that it is not possible to know the extent of infection and thus to be able to track contacts adequately. There must be more reliable data before stage 1 can begin and before we can move on to stages 2 and 3, respectively.

The last point I mention is that the Framework contemplates the continuation of physical distancing, handwashing and self-isolation of those with COVID-19 symptoms. Otherwise, the Framework assumes gradual reopening of businesses and public areas and allowing gradually bigger public gatherings. Notably, “[l]arge public gatherings such as concerts and sporting events will continued to be restricted for the foreseeable future”.

Other provinces have taken a different approach. For example, Saskatchewan’s “Re-Open Saskatchewan Plan” is very detailed, with specific dates for the first two phases for the opening of specific businesses and other activities. The next three phases do not have specific dates, but will be implemented after an assessment of transmission of COVID-19 rates; however, the plan names the types of businesses and activities to be opened.

Quebec will undertake a gradual reopening of educational institutions that must meet certain conditions, such as physical distancing; attendance is not mandatory and teachers over 60 are asked to teach from home. According to a Globalnews report, “The government is asking all students with health conditions to remain at home. If a student lives with a person who has a health condition that puts them at risk, students should not return to class. This also applies to students who live with seniors.”

New Brunswick has a phased plan, beginning with allowing two households to voluntary spend time together, opening recreational locations and other changes.

The federal government will also release a framework for reopening to which the provinces, territories and the federal government have agreed. It sounds more akin to the Ontario Framework than the more detailed provincial plans already released. The Prime Minister has said that the provinces are in the best place to determine how to reopen.

Here I intend to raise a few of the legal questions that might arise from the process of reopening Ontario. Some may and are likely to apply to other provinces; however, for convenience, I’ll limit myself to Ontario. My list is not intended to be exhaustive and suggests possibilities that might or might not occur.

To maintain control over an orderly reopening and to satisfy the Framework’s principles (such as protecting the vulnerable) it will be necessary to continue with the emergency at the provincial and possibly the municipal levels. The current emergency declaration will last until May 6th. A declaration of emergency may be made for only 14 days, with only one extension, also for a maximum of 14 days; the legislature may extend the declaration for periods of up to 28 days. Orders (such as requiring the closure of non-essential businesses or redeployment of healthcare workers regardless of collective agreements) under a declaration of emergency may be made for only 14 days, but may be extended. (See Emergency Management and Civil Protection Act (EMCPA), subsections 7.0.7(1) and (2) (re declaration of and extension of declaration by cabinet), subsection 7.0.7(3) (re extension by the legislature), section 7.0.8 (re orders made under the declaration).

Thus continuance of the declaration of the emergency would require ongoing consideration and the involvement of the legislature; the continuance of orders, however, would require only cabinet action. To date there has been little opposition to the emergency declarations and emergency orders, but as time goes on and as some openings occur, people may become more impatient and contemplate challenges under the Canadian Charter of Rights and Freedoms based on freedom of association, for example.

The CERB is available to people who “have stopped working because of reasons related to COVID-19” (among others in relation to employment insurance benefits). The answer to this question may rely on the nature of the “concern” and the answers to the next two questions. But the purpose behind the benefit is to help employees who have been unable to work because their employers have had to close their businesses. If the Framework is followed, employers will be required to ensure safety measures are followed and (presumably) provide the means for employees’ doing so because this is a health and safety issue.

This raises the application of human rights legislation and accommodation on the basis of age and disability. Under the Ontario Human Rights Code, discrimination in employment on both these grounds is prohibited. “Age” is defined as 18 or older. These are not situations where the individual is unable to perform the job without accommodation, however, but rather that they are more vulnerable to a factor unrelated to the job itself. It may be, if this is to be addressed, that it needs to be addressed by the province’s own “rules” related to the reopening of businesses (as does Quebec’s reopening of schools), consistent with the Framework’s focus on “protecting the people of Ontario, especially those who are most vulnerable and at high risk”.

Another way this might be addressed is if the employer does not provide adequate personal protection equipment; this would raise the possibility of a complaint under occupational health and safety. The Ontario Nurses Association was successful in a court claim resulting in an order to long-term care homes to provide appropriate equipment to health care workers. (See here.)

Some workers currently face this situation (and presumably some workers face the situation in the scenario immediately above). The answer here seems to involve observance of the appropriate protocols established by government when it reopens businesses and the corresponding observance by employers of those protocols, plus adequate testing. (I note again that students in Quebec living with seniors are asked not to return to school, but adult employees may be thought to be able to act more deliberately in taking proper precautions.)

These regulations (and others affecting other sectors) give the employer extensive powers to structure the workplace as it considers necessary to address the coronavirus crisis and suspends rights under collective agreements and any other relevant agreement governing the workplace. While actions that might otherwise attract a grievance may be accepted during the crisis, this does not mean the same will be tolerated as the situation normalizes in these workplaces.

The regulations provide that grievances be suspended for “the duration of the emergency” (see O. Reg. 118/20 relating to retirement homes and O. Reg. 77/20 relating to long-term care homes) or for “the duration of the order” (see O. Reg. 116/20 relating to boards of health); the union will be able to take steps once the emergency is declared over. (It is not clear whether the difference between “emergency” and “order” is intentional, but if so, it could mean a lengthy suspension of collective agreement rights in hospitals, for example.)

Currently, masks are not mandatory. However, the advice or recommendations about masks has changed almost 180 degrees over the last two months or so. Now Transport Canada is requiring face masks/coverings during certain stages of flight and “strongly encouraging” rail and bus passengers to wear masks “as much as possible” and when social distancing is not possible. As a result, for example, Go train passengers will not be allowed to board if they do not wear a face covering when physical distancing is not possible. As more businesses and other activities open, it will be more difficult to ensure social distancing.

The government may decide that rather than leave the issue to private businesses or to situations in which there is not a specific location to organize the wearing of masks (such as in a park), it will require everyone to wear a face covering when in public. It may rely on voluntary compliance (as it has in relation to staying at home), but it otherwise, it may need to make an order under the EMCPA.

The Framework contemplates continued social distancing and protections against COVID-19. Grocery stores have provided sanitizers and other protections. Importantly, they have limited entry to the store to a limited number of customers at a given time. Realistically, will this still be possible when more people are willing to shop in person as more stores, other businesses and other activities open?

Once there is a vaccine, we might expect a willingness to become vaccinated similar to the willingness to get a flu vaccine. However, there are factors that make the answer to voluntary vaccination more difficult. On the one hand, the impact of COVID-19 is recent and this may encourage people to get a vaccination when they don’t bother getting a flu vaccine, if they believe a failure to achieve “herd immunity” through vaccination might lead to a renewal of restrictive practices. On the other hand, while we know the flu vaccine does not always work as effectively as it might because it’s based on the wrong strain, we have a good idea of its negative effects for a few people. We won’t know how safe and effective the COVID-19 vaccine will be, assuming one will be available. There is also the constitutional question: vaccines are a provincial matter, and thus whether vaccination is made mandatory is also provincial. All provinces/territories may make vaccinations mandatory, but if not, it may be argued that achieving as high a vaccination rate as possible may be a national concern. Failure to obtain a vaccination could mean being isolated or some other consequence.

As more businesses open and more recreational activities are open, it will be harder to know what is permissible and what is not. It will be crucial over the progress of the reopening that the health and safety protocols be maintained until there is a significant level of confidence that a resurgence is not likely. Furthermore, signs of a “natural” resurgence in the fall require a retrenchment of at least some of the opening. The Framework contemplates this, as it contemplates that there may be resurgence at any point along the path to more less full reopening. At this point, voluntary compliance may be more difficult and more extensive enforcement necessary.

There have been lawsuits about the failure to provide protective equipment, but although this has been a global pandemic and at this time, there is relatively high approval of how governments have handled the pandemic in Canada, it is likely that people will want to track reasons for particular weaknesses in response. For example, to what extent is the spread of COVID-19 infections and deaths in long-term care homes attributable to the decrease in inspections before the outbreak? To what extent are the outbreaks in certain workplaces attributable to a failure to adapt procedures or to respond to initial signals of infection? These are other circumstances that may constitute the subject for class action lawsuits seeking compensation for unnecessary or preventable deaths. To the extent these are against government, if Schedule 4 of Bill 161, which will amend the Class Proceedings Act in Ontario, passes the legislature, it will make it more difficult to initiate class actions (see my Slaw post here). The repeal last year of the Crown Proceedings Act and enactment of the Crown Liability and Proceedings Act, 2019 also make it harder to sue the government (see my Slaw post).

The above suggest some of the questions that attract a legal response and some, but certainly not all, of the factors that might be relevant in considering how the law might apply. Other questions would depend on governments’ (federal and provincial) response to the reopening and would require more information that we now possess about the virus (for example, do infected people have immunity and if so, for how long; will the virus mutate). In short, the length of the emergency, the way in which society will be reopened, the requirements that the government may continue to place on businesses and residents, new scientific information, as well as new requirements that it might consider necessary to prevent a resurgence, will all influence how coronavirus-related law matters will affect the post-coronavirus world.