Introduction

Transport Canada’s latest order is Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 8 (Interim Order No. 8).  Interim Order No. 8 does not materially differ from Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 6 (Interim Order No. 6), which came into effect on April 20, 2020.

However, it is worth considering Transport Canada’s new requirements regarding face masks for persons boarding flights to Canada, which were originally introduced in Interim Order No. 6.

Interim Order No. 8 defines a face mask as:

[A]ny non-medical mask or face covering that is made of at least two layers of tightly woven material such as cotton or linen, is large enough to completely and comfortably cover a person’s nose and mouth without gaping and can be secured to a person’s head with ties or ear loops.

The new requirements regarding face masks are described below.

Notification, confirmation, and verification

Interim Order No. 8 states that a private operator or air carrier must notify every person who intends to board a flight to Canada that they must:

1. Be in possession of a face mask prior to boarding;
2. Wear the face mask at all times during the flight when they are two metres or less from another person, unless both persons live in the same residence;  and
3. Comply with any instructions given by a crew member with respect to wearing a face mask.

Following the above notifications, Interim Order No. 8 requires that:

1. Every person must confirm to the private operator or air carrier prior to boarding a flight to Canada that they are in possession of face mask (and must not provide a confirmation that they know to be false or misleading); and
2. The private operator or air carrier must verify during the boarding process that every person boarding the flight to Canada is in possession of a face mask.  

Wearing of face mask

Consistent with the notification requirement, Interim Order No. 8 states that a private operator or air carrier must now require a person (other than a crew member) to wear a face mask at all times during a flight to Canada when the person is two metres or less from another person, unless they live in the same residence.

This requirement does not apply under the following exceptional circumstances:

1. When the safety of the person could be endangered by wearing a face mask;
2. When the person is eating, drinking, or taking oral medications; or
3. When a crew member authorizes the removal of the face mask to address the person’s special needs or unforeseen circumstances.

Compliance

Interim Order No. 8 states that a person must comply with any instructions given by a crew member with respect to wearing a face mask. 

A private operator or air carrier is now prohibited from permitting a person to board a flight to Canada if:

1. The person is a competent adult and does not provide, or refuses to provide, confirmation prior to boarding that they are in possession of a face mask;
2. The private operator or air carrier cannot verify that the person is in possession of a face mask; or
3. The person refuses to comply with a crew member’s instruction with respect to the wearing of a face mask.

Private operators or air carriers are now required to keep a record of a person’s refusal to comply with any instructions given by a crew member with respect to wearing a face mask, and will inform the Minister of Transport of the refusal as soon as it is feasible to do so.

Consequences of non-compliance

Private operators or air carriers, as well as individuals, are now subject to monetary penalties for non-compliance with Interim Order No. 8.

The following will subject a private operator or air carrier to a monetary penalty:

1. Failing to notify every person who intends to board a flight to Canada that they must:
   1. Be in possession of a face mask prior to boarding;
   1. Wear the face mask at all times during the flight when they are two metres or less from another person, unless both persons live in the same residence; and
   1. Comply with any instructions given by a crew member with respect to wearing a face mask.
2. Failing to verify during the boarding process that every person boarding the flight to Canada is in possession of a face mask. 
3. Failing to require a person (other than a crew member) to wear a face mask at all times during a flight to Canada when the person is two metres or less from another person, unless they live in the same residence.
4. Permitting a person to board a flight to Canada if:
   1. The person is a competent adult and does not provide, or refuses to provide, confirmation prior to boarding that they are in possession of a face mask;
   1. The private operator or air carrier cannot verify that the person is in possession of a face mask; or
   1. The person refuses to comply with a crew member’s instruction with respect to the wearing of a face mask.

The maximum penalties permitted for the above contraventions are $5,000.00 for an individual, and $25,000.00 for a corporation.

The following will subject a person to a monetary penalty:

1. Failing to confirm to the private operator or air carrier prior to boarding a flight to Canada that they are in possession of face mask.
2. Providing confirmation to the private operator or air carrier prior to boarding a flight to Canada that they are in possession of a face mask, and they know such confirmation to be false or misleading.
3. Failing to comply with any instructions given by a crew member with respect to wearing a face mask.

The maximum penalties for the above contraventions are $5,000.00.

Blanket Exemptions

All of the requirements noted above do not apply to the following persons:

1. An infant;
2. A person who has breathing difficulties unrelated to COVID-19;
3. A person who is unconscious; and
4. A person who is unable to remove a face mask without assistance.