It has been widely reported that Ms. Liz Uihlein, the CEO of Uline Inc. (Uline) was recently granted an exemption from Canada’s COVID-19 travel restrictions and its 14-day self-quarantine requirement, for a brief business trip. The story has prompted many Canadians (and even foreign nationals) to wonder when such exemptions will be granted.
Canada’s self-quarantine requirement versus its COVID-19 travel restrictions
It should be mentioned that Canada’s 14-day self-quarantine requirement is distinct from its COVID-19 travel restrictions:
- The COVID-19 travel restrictions prohibit the entry of many foreign nationals to Canada. However, entry is still permitted in certain circumstances.
- The 14-day self-quarantine requirement does not prohibit anyone from entering Canada; it merely requires them to self-quarantine upon their admission to Canada.
The COVID-19 travel restrictions are applied differently, depending on whether the foreign national is entering Canada from the United States or from any other country. However, they generally prohibit the entry of foreign nationals to Canada for purposes that are considered “optional or discretionary.”
The Canada Border Services Agency (CBSA) generally interprets the above phrase to mean “non-essential travel.” Foreign nationals who can demonstrate that their travel is not “optional or discretionary” are still permitted to enter Canada, even while the COVID-19 travel restrictions are in place. Of course, CBSA officers have considerable discretion when making this determination.
In contrast, the 14-day self-quarantine requirement applies to all international travellers, including Canadian citizens and permanent residents. Although exemptions from the self-quarantine requirement are also available, they are more limited and generally more difficult to obtain than an exemption from the COVID-19 travel restrictions.
The 14-day self-quarantine requirement
The current 14-day self-quarantine requirement was established by OIC 23 – Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation) No. 4 (Self-Quarantine Order), which will expire on September 30, 2020. The self-quarantine requirement has already been extended four times and the Government of Canada is expected to extend it beyond the current expiration date.
Exemptions from the 14-day self-quarantine requirement
A limited number of exemptions from the 14-day self-quarantine requirement appear in Subsection 6 of the Self-Quarantine Order:
- A crew member as defined in the Canadian Aviation Regulations or a person who enters Canada only to become such a crew member;
- A member of a crew as defined in the Immigration and Refugee Protection Regulations (IRPR) or a person who enters Canada only to become such a crew member;
- A person who enters Canada at the invitation of the Minister of Health for the purpose of assisting in the COVID-19 response;
- A member of the Canadian Forces or a visiting force, who enters Canada for the purpose of performing their duties as a member of either of those forces;
- A person (or a class of persons) who the Chief Public Health Officer determines will provide an essential service;
- A person (or a class of persons) whose presence in Canada, in the opinion of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, or the Minister of Public Safety and Emergency Preparedness (Minister of Public Safety), is in the national interest, as long as the person complies with any conditions imposed on them to minimize the risk of introduction or spread of COVID-19 (any conditions imposed must be developed in consulation with the Minister of Health);
- A person permitted to work in Canada as a provider of emergency services under Paragraph 186(t) of the IRPR, and who enters for the purpose of providing those services;
- A person who enters Canada for the purpose of providing medical care or transporting essential medical equipment, supplies or means of treatment, or delivering, maintaining, or repairing medically-necessary equipment or devices, as long as they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada;
- A person who enters Canada for the purpose of receiving essential medical services or treatments within 36 hours of entering Canada, other than services or treatments related to COVID-19;
- A person permitted to work in Canada as a student in a health field under Paragraph 186(p) of the IRPR who enters Canada for the purpose of performing their duties, as long as they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada;
- A licensed healthcare professional with proof of employment in Canada who enters Canada for the purpose of performing their duties as a licenced health care professional, as long as they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada;
- A person (including a captain, deckhand, observer, inspector, scientist and any other person supporting commercial or research fishing-related activities) who enters Canada aboard a Canadian fishing vessel or a foreign fishing vessel as defined in the Coastal Fisheries Protection Act, for the purpose of carrying out fishing or fishing-related activities, including offloading of fish, repairs, provisioning the vessel and exchange of crew;
- A person who enters Canada within the boundaries of an integrated trans-border community that exists on both sides of the Canada-United States border and who is a habitual resident of that community, if entering Canada is necessary for carrying out an everyday function within that community;
- A person who enters Canada if the entry is necessary to return to their habitual place of residence in Canada after carrying out an everyday function that, due to geographical constraints, must involve entering the United States; or
- A person who seeks to enter Canada on board a vessel, as defined in the Canada Shipping Act, 2001, that is engaged in research and that is operating under the authority of the Government of Canada or at its request or operated by a provincial government, a local authority or a government, council, or other entity authorized to act on behalf of an Indigenous group, as long as the person remains on board the vessel.
Many of these exemptions are relatively straightforward. For example, specific exemptions are provided for crew members, persons supporting the health sector, providers of emergency services, and persons serving on fishing vessels. However, some exemptions are not clearly defined in the Self-Quarantine Order itself:
- The Minister of Health exemption [Subsection 6(c)]: As mentioned above, a person may be exempted if they enter Canada at the invitation of the Minister of Health, for the purpose of assisting in the COVID-19 response. Clearly, persons must be seeking entry to Canada in order to assist in the COVID-19 response but there is no published guidance regarding what other criteria will be applied. According to media reports, the Minister of Health has granted such an exemption only once, for employees of a company that makes ventilators.
- The national interest exemption [Subsection 6(f)]: As mentioned above, the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, and the Minister of Public Safety are authorized to exempt a person (or class of persons) if their entry is deemed to be in the national interest. It is uncertain how many national interest exemptions have been granted and there is no published guidance regarding what criteria will be applied. However, according to media reports, the Minister of Public Safety and Emergency Preparedness has previously issued three national interest exemptions. It has also been reported that the Minister of Foreign Affairs has issued 53 national interest exemptions for business mobility and an additional eight for medical reasons or to facilitate international travel. The Minister of Citizenship and Immigration has also previously issued at least two national interest exemptions, both of which were highly publicized:
- He approved a national interest exemption for National Hockey League (NHL) players and staff who will be isolated from the general public in Toronto and Edmonton, the NHL’s designated “hub cities.”
- He approved a national interest exemption made by Major League Baseball (MLB) and the Toronto Blue Jays, which permitted players and staff to enter Canada for preseason training. However, he later rejected MLB’s request for a subsequent national interest exemption in connection with the regular season.
- The Chief Public Health Officer exemption [Subsection 6(e)]: As mentioned above, the Chief Public Health Officer also has the authority to exempt a person (or class of persons) if she determines that they will provide an essential service. According to media reports, the Chief Public Health Officer has previously approved five applications from key COVID-19 responders, including a group of “health-care professionals” who would not otherwise be admitted. However, the Public Health Agency of Canada (PHAC) also recognizes the following seven Group Exemptions under Subsection 6(e) of the Self-Quarantine Order:
- Persons in the trade or transportation sector who are important for the movement of goods or people, including truck drivers and crew members on any aircraft, shipping vessel or train, and that cross the border while performing their duties or for the purpose of performing their duties;
- Persons who must cross Canadian international borders regularly to go to their normal place of employment, including critical infrastructure workers (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing), provided they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada (if direct medical care is needed for persons over age 65, an individual request outlining the precautionary public health measures intended for interaction with this older age group must be submitted to the Chief Public Health Officer for determination);
- Technicians or specialists specified by a government, manufacturer, or company, who enter Canada as required for the purpose of maintaining, repairing, installing or inspecting equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing) and are required to provide their services within 14 days of their entry to Canada and have reasonable rationales for the immediacy of the work and the inability to plan for a 14 day quarantine;
- Persons, including a captain, deckhand, observer, inspector, scientist, veterinarian and any other person supporting commercial or research open water aquaculture-related activities, who enter Canada for the purpose of carrying out aquaculture-related activities, who enter Canada for the purpose of carrying out aquaculture-related activities, including fishing, transporting fish to and from the aquaculture facility, treating fish for pests or pathogens, repairs, provisioning of aquaculture-related vessels or aquaculture facilities or exchange of crew and who proceed directly to an open water facility or vessel upon entry to Canada;
- Emergency service providers, including firefighters, peace officers, and paramedics, who return from providing such services in another country and are required to provide their services within 14 days of their return to Canada;
- Commercial conveyance operators repatriating human remains into Canada; and
- Officials of the Government of Canada or a foreign government, including border services officers, immigration enforcement officers, law enforcement and correctional officers, who are escorting individuals travelling to Canada or from Canada pursuant to a legal process such as deportation, extradition, or international transfer of offenders.
Most of the PHAC Group Exemptions will not apply to the average business person. However, the following two Group Exemptions could potentially apply, in appropriate situations:
- The PHAC Group Exemption for persons who must cross Canadian international borders regularly to go to their normal place of employment, including critical infrastructure workers, could apply to business persons. Although the use of the word “including” suggests that its application is not limited to critical infrastructure workers, these PHAC Group Exemptions are all established under the authority of Subsection 6(e) of the Self-Quarantine Order, which specifically refers to essential workers. Therefore, it is unlikely that this PHAC Group Exemption would apply to a person who is not considered an essential worker. In determining whether a particular person is entering for an essential purpose, it is useful to refer to Public Safety Canada’s Guidance on Essential Services and Functions in Canada During the COVID-19 Pandemic. The CBSA also appears to have issued a recent internal directive (it has not been made public), which limits the application of this PHAC Group Exemption to persons who are crossing the border daily or weekly.
- The PHAC Group Exemption for technicians or specialists, who enter Canada for the purpose of maintaining, repairing, installing or inspecting equipment necessary to support critical infrastructure, could also apply to certain technical personnel in the business context. For example, technicians coming to install or service essential equipment used by Canadian businesses that are part of Canada’s critical infrastructure would qualify. However, such persons also need to demonstrate the urgent need for their services, to explain why they cannot wait until the end of the 14-day self-quarantine period before commencing their work.
Should Ms. Uihlein have received an exemption?
The Minister of Public Safety has already confirmed via Twitter that Ms. Uihlein was mistakenly admitted to Canada despite the COVID-19 travel restrictions and also mistakenly given an exemption from the 14-day self-quarantine requirement. In a separate tweet, he also confirmed that Ms. Uihlein had not received a national interest exemption; she was instead exempted from the COVID-19 travel restrictions and the self-quarantine requirement by the CBSA, almost certainly at the time of entry. So how did this occur?
Since Ms. Uihlein travelled to Canada from the United States, she would have been subject to OIC 21 - Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States), which prohibits entry for purposes that are considered “optional or discretionary.” As mentioned above, the CBSA generally interprets this phrase to mean that only essential travel should be permitted.
According to media reports, Ms. Uihlein travelled to Canada for a "facility visit" to her company’s office and warehouse in Milton, Ontario; Uline is a retailer of shipping and packing supplies. For many CBSA officers, this would not have been considered “essential travel.” However, given the considerable discretion exercised by CBSA officers when making this determination, it is not entirely unexpected that the particular CBSA officer who inspected Ms. Uihlein may have believed that she was travelling for a purpose that was not “optional or discretionary.”
The exemption from the 14-day self-quarantine requirement is less clear. As explained above, the exemptions described in the Self-Quarantine Order normally would not apply to a business person.
Since no national interest exemption was granted in this case, the only exemption that might possibly apply appears to be the PHAC Group Exemption for persons who must cross Canadian international borders regularly to go to their normal place of employment. However, Ms. Uihlein did not appear to satisfy the requirements for this PHAC Group Exemption for the following reasons:
- As explained above, it is likely that any person seeking the benefit of this PHAC Group Exemption must be an essential worker. It seems unlikely (although not impossible) that the CEO of a company, which carries on business as a retailer of shipping and packing supplies, would be considered an essential worker.
- Ms. Uihlein also clearly resides in the United States and is based in the United States. She does not reside in the United States while having her normal place of employment in Canada (or vice versa). Given this fact, it is unlikely that she would be required to cross the border regularly to go to her normal place of employment. This is especially true if the CBSA has now issued an internal directive, interpreting “regularly” to mean “daily or weekly.”
When the PHAC first established the above Group Exemptions, it required all persons to send an email to them in advance of travel, explaining in detail why they believed that the exemption applied. Unless they received a confirmation email from the PHAC, agreeing with them, these persons could not claim the benefit of the Group Exemption when they arrived in Canada. However, the PHAC later changed its request process (likely because it was inundated with too many requests) and stated that the CBSA would make the final determination regarding the PHAC Group Exemptions, at the time of entry.
In other words, it was no longer necessary to obtain a confirmation email from the PHAC before requesting a PHAC Group Exemption at the time of arrival. This procedural change clearly simplified the process but it also transferred the responsibility for PHAC Group Exemptions to CBSA officers who had no prior experience dealing with such requests. When the PHAC confirmation emails were still required, CBSA officers only had to verify that the traveller was in possession of such an email.
In his tweet, the Minister of Public Safety indicated that his department was working with the CBSA to ensure that similar cases do not occur again. Hopefully, there will be greater consistency in future adjudications of exemption requests from the self-quarantine requirement and the COVID-19 travel restrictions as well.
Please note that the information provided in this article does not constitute legal or professional advice or a legal opinion of any kind. If you require any assistance regarding specific legal issues concerning Canadian work permit applications or other immigration law matters, please contact Henry Chang in our Canada-US Business Immigration group.