Helping Canadians - Mask Issues

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:

• Municipal bylaw - there are 444 Municipalities in Ontario
• Public Health Unit recommendation/order - there are 35 Public Health Units in Ontario which are responsible for those 444 Municipalities
• Provincial Regulations -  O.Reg 82/20; O.Reg 263/20; O.Reg 364/20 
• Section 22 Class Order from the Chief Medical Officer of Health, Section 77.1 of the Health Protection and Promotion Act

4th area – In Ontario also, mandatory mask-wearing for SCHOOLS has been mandated by the:

• Provincial Government and the Provincial Minister of Education (mandatory for Grades 1 to 12)
• Their policy on mask exemption states "There are reasonable exceptions to wearing a mask."
• Note:  It is advisable to go to their website to verify their latest policy on masks, as it has changed from their initial policy created in 2020 to the one we have now displayed above

PUBLIC SPACES (Businesses) 

• The most important ACTION to take is to PRINT or DOWNLOAD a copy of the mandatory mask Municipal bylaw, Public Health Unit recommendation/order or Provincial Regulation for the area where you expect to receive service (not necessarily in the area where you live – rules could be different) or the Class Order from the CMOH.
• This bylaw, recommendation/order, Provincial Regulation and Class Order should contain mask exemptions for people who are unable to wear a mask. Please ensure you have a copy of this with you. This will be your first defence in arming yourself with knowledge.
  

SCHOOLS

• There are 76 public school boards in Ontario, for example

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 or the CMOH 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.

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": 

• A “private owner" of a business does not have the unilateral right to treat his business as a “private business” as if it were his house (your private house is PRIVATE property (space) - there are different rules for different "spaces")
• The fact that a business has a “commercial” license/authorization which is required to conduct business, the very fact of having this license extends an open invitation to members of the PUBLIC to enter and buy its goods and/or services 
• In doing so, all municipal and provincial laws are applicable to that business, including the exemptions contained in the masking laws, as well as the Ontario Human Rights Code
• Therefore, businesses can write any store policy they want, providing it is not against the law (where the mask exemptions are specified for example, in Ontario Regulation 364/20 section 2(4) - this shows all of the mask exemptions (listed below); and 2(6) - this shows where "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)" AND that their store policy does not discriminate against anyone under the Human Rights Code
  

OPTION 1 – while you are at the store, you could:

• Phone your local bylaw officer or the police (remember, you printed off the bylaw or Provincial Regulation for the area where you want to receive service – call that one) 
• To find your municipal bylaw phone number, click HERE for Ontario or click HERE for all provinces and territories 
• Demand that the business be fined under the Municipal bylaw, Public Health recommendation or Provincial Regulation for failure to comply with the mask exemption in those orders

To find the mask exemptions under O.Reg 82/20; O.Reg 263/20; O.Reg 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,

• (a) is a child who is younger than two years of age;
• (b) is attending a school or private school within the meaning of the Education Act that is operated in accordance with a return to school direction issued by the Ministry of Education and approved by the Office of the Chief Medical Officer of Health; 
• (c) is attending a child care program at a place that is in compliance with the child care re-opening guidance issued by the Ministry of Education; 
• (d) is receiving residential services and supports in a residence listed in the definition of “residential services and supports” in subsection 4 (2) of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008; 
• (e) is in a correctional institution or in a custody and detention program for young persons in conflict with the law; 
• (f) is performing or rehearsing in a film or television production or in a concert, artistic event, theatrical performance or other performance; 
• (g) has a medical condition that inhibits their ability to wear a mask or face covering;
• (h) is unable to put on or remove their mask or face covering without the assistance of another person;
•  (i) needs to temporarily remove their mask or face covering while 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;

• (j) is being accommodated in accordance with the Accessibility for Ontarians with Disabilities Act, 2005;
• (k) is being reasonably accommodated in accordance with the Human Rights Code; (note: this is found under Section 1, Services)
•  (l) performs work for the business or organization, is in an area that is not accessible to members of the public and is able to maintain a physical distance of at least two metres from every other person while in the indoor area. 

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:

• we are all surprised to learn that some businesses do not in fact know YOUR rights
• phone the head office or store owner and tell them what YOUR legal rights are to receive service (as outlined in Option 1) and what your options are to take legal action against them if they do not honour your mask exemption (as outlined in Options 3 & 4)
• sometimes a phone call, giving businesses the benefit of the doubt may rectify this for you
• if they still do not intend to honour your mask exemption even after you have apprised them of YOUR legal rights to receive their service, you may wish to exercise your rights for legal action under Options 3 and 4

OPTION 3 – you could phone the Human Rights Tribunal for your province/territory to:

• make a complaint for discrimination on “disability” which is a protected human rights code in Ontario for example. (Ontario 1-866-598-0322)
• 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”

OPTION 4 - you could sue the business for damages in either:

• small claims court - this is up to a max of $35K in Ontario - each province may be different; or
• Provincial Superior Court - for claims of more than $35K in Ontario - each province may be different

OPTION 5 - make a court application for a declaration that the store policy is illegal

• file an application to the Superior Court level, asking for a "declaration" that the store policy be declared illegal because they are not following the municipal bylaw; that the store is not in compliance with the law
• most if not all municipalities have a bylaw which states that business policies shall include mask exemptions and businesses shall have that note posted on their door
• unfortunately, most businesses don't have these exemptions posted on their doors
• you could ask for some damages and your costs
• this is the way to avoid getting penalized on costs, should you lose
• this may be a faster route to get remedy
• and the good news is that the business would be served immediately
• businesses will need to incur costs to defend themselves; their legal council will see that they are not in compliance with the law and may choose to amend their store policy right away in order to avoid costly court fees

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

• this is the employers responsibility to accommodate your disability under the Human Rights Code

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:

• make a complaint for discrimination on “disability” which is a protected human rights code in Ontario for example. (Ontario 1-866-598-0322)
• 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”
  

OPTION 2 for employees – you could sue your employer for “wrongful dismissal”:

• there are several ways an employer could terminate an employee – but if you believe your job has been terminated because you were unable to wear a mask, you may wish to seek legal advice from an employment lawyer 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." 

• Bylaws of a school board are always subject to the Human Rights Code
• If a student cannot wear a mask due to a medical condition, this falls under the protected code of disability under the Human Rights Code

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:

• Amanda Armstrong is a lawyer from Markham Ontario - she is endeavouring to assist parents and their child(ren) in challenging the issues of COVID-19 mask exemptions outside of court processes.  "Harm is being done right now to everyone, especially child(ren) who are exempt from COVID-19 masks. Parents are doing their best in taking immediate action to protect their child(ren)’s rights; however, they are encountering several obstacles and are being stonewalled. The puck is passing continuously without any rhyme or reason, leaving parents with no viable recourse for their child(ren).  I am here to assist you immediately in defending your child(ren)’s COVID-19 mask exemption right.  Contact me to assist you in advocating for you and your child(ren).”
• Contact Amanda Armstrong at 647-949-0269 or email to aptarmstronglaw@gmail.com 
• 1/2 hour legal consultation for discounted rate of $50 + HST

OPTION 2 - family disputes involving children over covid-19 issues (Family Law Court):

• Nirmala Armstrong is a family law lawyer who is specializes in dealing with all types of family law issues, now including disputes between parents or legal guardians involving children and covid-19 issues
• Contact Nirmala Armstrong at 905-201-7322 or email narmstronglaw@gmail.com
• Legal fees will apply

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:

• Is your child(ren) mask exemption not being honored at school?
• Is your child(ren) suffering physically, mentally, and/or emotionally from the covid mandates?
• If you answered yes to any of these questions please submit an intake form for the Children's Class Action - which can be found on their STANDING TALL FOR OUR CHILDREN page

OPTION 4 - phone the Human Rights Tribunal for your province/territory to:

• Make a complaint for discrimination on “disability” which is a protected human rights code in Ontario for example. (Ontario 1-866-598-0322) 
• 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”

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.

DISCLAIMER:

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!