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.
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 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 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.
A limited number of exemptions from the 14-day self-quarantine requirement appear in Subsection 6 of the Self-Quarantine Order:
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:
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 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:
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.