1 COVID-19 MANDATORY MASKING – LEGISLATION CITED 1. City of Toronto By-Law 541-2020 – section 2...........................................................................................................1 2. Ontario Regulations 82/20, 263/20 and 364/20 – schedule 1: section 2(4) and (6)............................................1 3. Human Rights Code, RSO 1990, c H.19 – preamble, sections 1, 2, 3 and 13......................................................3 4. Trespass to Property Act, RSO 1990, c T.21 – section 2(1).....................................................................................4 5. Police Services Act, R.S.O. 1990, c. P.15 – section 1(2)..........................................................................................4 6. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII), [2015] 2 SCR 789 – paragraph 30.................................4 7. Durham Region, Medical Officer of Health, COVID-19 Fact Sheet, Nov. 23, 2020 – page 4 (excerpt).........5 City of Toronto By-Law 541-2020 2. (a) The policy shall include the following exemptions from the requirement to wear a Mask or Face Covering: (1) children under two years of age; (2) persons with an underlying medical condition which inhibits their ability to wear a Mask or Face Covering; (3) persons who are unable to place or remove a Mask or Face Covering without assistance; (4) employees and agents of the person responsible for the Establishment within an area designated for them and not for public access, or within or behind a physical barrier; and (5) persons who are reasonably accommodated by not wearing a Mask or Face Covering in accordance with the Ontario Human Rights Code. (b) The policy shall permit the temporary removal of a Mask or Face Covering where necessary for the purpose of receiving services, or while actively engaging in an athletic or fitness activity. (c) Subject to the exemptions in section 2(a), the policy shall require that employees wear a Mask or Face Covering when working in the enclosed public space. (d) The policy shall not require employees or members of the public to provide proof of any of the exemptions set out in section 2(a). Ontario Regulations 82/20, 263/20 and 364/20 2 Schedule 1 Businesses and Places General compliance 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; or (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. (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 (4). 3 Human Rights Code, RSO 1990, c H.19 Preamble Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations; And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario; Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: PART I FREEDOM FROM DISCRIMINATION Services 1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1. Accommodation 2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (2); 2012, c. 7, s. 2 (1). Harassment in accommodation (2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (2); 1999, c. 6, s. 28 (3); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (3); 2012, c. 7, s. 2 (2). Contracts 3 Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 3; 1999, c. 6, s. 28 (4); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (4); 2012, c. 7, s. 3. 4 Announced intention to discriminate 13 (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I. R.S.O. 1990, c. H.19, s. 13 (1). Opinion (2) Subsection (1) shall not interfere with freedom of expression of opinion. R.S.O. 1990, c. H.19, s. 13 (2). Trespass to Property Act, RSO 1990, c T.21 Trespass an offence 2 (1) Every person who is not acting under a right or authority conferred by law... Police Services Act, R.S.O. 1990, c. P.15 Declaration of principles 1 Police services shall be provided throughout Ontario in accordance with the following principles: 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII), [2015] 2 SCR 789 [30] This Court has confirmed that the Charter [[[Quebec human rights legislation]]], like the human rights legislation of the other provinces, has a special quasi-constitutional status: Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 S.C.R. 345, at p. 402, reproduced in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 (“City of Montréal”), at para. 28; see also de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 45. Indeed, unless otherwise provided, ss. 1 to 38 of the Charter prevail over other Quebec statutes: s. 52 of the Charter. Furthermore, s. 53 of the Charter provides that, “[i]f any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter.” 5 Durham Region, Medical Officer of Health, COVID-19 Fact Sheet, Nov. 23, 2020 Who is exempt from wearing a non-medical mask or face covering in an enclosed public space? A person is exempt from wearing a non-medical mask or face covering if: • The person is a child under the age of two years; or a child under the age of five years either chronologically or developmentally, and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver; • The person is unable to remove their mask without assistance; • Wearing a non-medical mask or face covering would inhibit the person’s ability to breathe in any way; • For any other medical reason, the person cannot safely wear a non-medical mask or face covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information; • For any religious reason the person cannot wear a non-medical mask or face covering or cannot cover the face in a manner that would properly control the source. Note - A person means any customer, patron, employee, visitor or resident who enters the enclosed public space. Does a person have to show proof of their exemption? No, a person does not have to show proof of their exemption. There is no need for an exemption card, or a letter from a physician. Can a person be refused service if they do not wear a mask? Owners and operators of businesses or organizations with enclosed public spaces are encouraged to look for alternatives for those that are exempt from wearing a mask to still be able to receive their goods and services, such as making appointments, having special hours for shopping, or curbside pick- up. Owners and operators are encouraged to not deny ser vices to people who are unable to wear a non-medical mask or face covering.
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