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Published: September 30, 2020
Updated: October 21, 2021
The following article is for general information only, and should not be construed as medical or legal advice.
Valuable legal OPTIONS for SCHOOLS are now available from law firms as of March 2021 and have been listed below under Scenario #3 for Schools
Please visit www.constitutionalrightscentre.ca for free legal advice on this and other subjects. This Centre published an informative video in September 2020 on masking and your rights. We have placed it below for your convenience – this video can be found on their web-site under the Media menu and on YouTube. It was very generous of Mr. Galati and his team to make this video to address the many questions he has personally received over the mandatory mask issue. Please consider donating to this Centre so that they may be able to continue to provide free legal advice and representation of your constitutional rights.
There are 4 different areas where mandatory mask-wearing has been ordered in all provinces and territories. Please check your province or territory in all areas to find where your mandatory masking orders come from.
1st, 2nd & 3rd area – In Ontario for example, mandatory mask-wearing for PUBLIC SPACES has either been mandated as a:
Provincial Regulations take precedence over Municipal bylaws and Public Health recommendations.
4th area – In Ontario also, mandatory mask-wearing for SCHOOLS has been mandated by the:
PUBLIC SPACES (Businesses)
Some school boards, however, are making their own bylaws on mandatory masks for all grade levels which may be different from the Ministry of Education policy - or worse, not even allowing medical exemptions. This is illegal – they cannot overwrite the Provincial Government and Provincial Minister of Education mask policy nor discriminate under the Human Rights Code.
Their policy on mask exemption states "There are reasonable exceptions to wearing a mask." Like any business, schools cannot make policies that discriminate against "disability" under the Human Rights Code. If your child(ren) has a medical condition which prevents them from wearing a mask, schools MUST honour this medical exemption. If not, your child(ren) are being discriminated upon for disability under the Human Rights Code and you could file a human rights complaint on their behalf. Other options are presented below under the 3rd Scenario for Schools.
UPDATE June 21, 2021: Stand Up Canada has a LEGAL CHALLENGE to the "NO MASK NO SERVICE" business policy in Ontario. A win will create a major legal precedent in Ontario. Please visit OUR LEGAL CHALLENGE page for more details about this, including how you can best support this challenge.
If you arrived at a store or restaurant for example, declared your medical exemption (unable to wear a mask), and you were denied service because the business is claiming they are "private" and cannot provide you service unless you wear a mask:
BUSINESSES ARE NOT "PRIVATE":
OPTION 1 – while you are at the store, you could:
To find the mask exemptions under the Ontario Provincial Regulation 364/20, go to General Compliance, section 2(4) We have listed it below in full:
2(4) The person responsible for a business or organization that is open shall ensure that any person in the indoor area of the premises of the business or organization, or in a vehicle that is operating as part of the business or organization, wears a mask or face covering in a manner that covers their mouth, nose and chin during any period when they are in the indoor area UNLESS the person in the indoor area,
- (i) to receive services that require the removal of their mask or face covering,
- (ii) to engage in an athletic or fitness activity,
- (iii) to consume food or drink, or
- (iv) as may be necessary for the purposes of health and safety;
Including that under 2(6) For greater certainty, it is not necessary for a person to present evidence to the person responsible for a business or place that they are entitled to any of the exceptions set out in subsection 2(4).
OPTION 2 - phone that store head office or direct owner:
OPTION 3 – you could phone the Human Rights Tribunal for your province/territory to:
OPTION 4 - you could sue the business for damages in either:
OPTION 5 - make a court application for a declaration that the store policy is illegal
If your employer mandates masks, and you declare you have a medical exemption (unable to wear a mask), your employer must accommodate you for the protected code of disability under the Human Rights Code Ontario, for example. Note, each province/territory may have different protected codes under their provincial/territorial Human Rights Code – find your area and double check that “disability” is a “protected code”.
OPTIONS 1 and 2 for your employer – your employer has to either:
(1) find you work where you don't need a mask; or
(2) create an environment where you don’t need to wear a mask to do your job
However, if your employer refuses these 2 options and terminates your employment as a result of you not being able to wear a mask to perform your duties at work – you could now exercise 2 options:
OPTION 1 for employees – you could phone the Human Rights Tribunal for your province/territory to:
OPTION 2 for employees – you could sue your employer for “wrongful dismissal”:
The following scenarios are based on Ontario only. Please verify the masking policy from your Provincial/Territorial Government and Provincial Minister of Education. Remember that school board districts have no authority to overwrite provincial policies or discriminate under the Human Rights Code.
Did you know that medical doctors are the only legal profession allowed to “issue” medical exemptions? Therefore, schools, or principals have no legal authority whatsoever to “approve” something that a medical doctor “issues”. Schools, school boards, trustees, principals and teachers have no legal authority whatsoever to disregard the medical assessment of a student's medical doctor.
If your school board district has written their own bylaw that mandates masks for all grades which DO NOT ALLOW MASK EXEMPTIONS or DO NOT "REASONABLY ACCOMMODATE" for MEDICAL EXEMPTIONS – this is illegal. Remember that provincial policy on mask exemptions is "There are reasonable exceptions to wearing a mask."
OPTION 1 - immediate course of action, contact a law firm to deal with mask exemption for you and/or your child(ren) outside of court:
OPTION 2 - family disputes involving children over covid-19 issues (Family Law Court):
OPTION 3 - class-action, if your child(ren) are suffering harms from covid mandates at school (physical and psychological), there is a class-action lawsuit by a non-profit organization, Elders Without Borders, which has been started in Ontario and the intention is to include all provinces:
OPTION 4 - phone the Human Rights Tribunal for your province/territory to:
There may be other options available to you which are not described here. Please consult with a qualified legal expert if you feel your child’s/children’s rights have been violated.
Please note that none of the lawyers or law firms mentioned on this page are affiliated whatsoever with Stand Up Canada by any means including any advertising or support. Stand Up Canada is only providing legal referrals of these law firms to let everyone know where to turn to for help in this situation. We are grateful to them for helping!
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