This article was revised to include updates as of May 22, 2020 On March 18, 2020, the Minister of Health and Community Services for Newfoundland and Labrador declared a Public Health Emergency under the Public Health Protection and Promotion Act. This declaration continues in effect; along with the accompanying Orders under the Act, and has […]read more
COVID-19 Travel Restrictions in Atlantic Canada – A Summary for Business Travelers
This article was revised to include the most recent provincial travel updates as of May 28th, 2020.
While the term “unprecedented” is being used frequently in the context of the COVID-19 pandemic and the measures that have been taken in response to it, one context where the word can legitimately be applied is the restrictions to inter-provincial travel that have been introduced in Atlantic Canada. Travel between jurisdictions that previously would have occurred without second thought is now either banned outright or severely curtailed, and where permitted is subject to mandatory self-isolation requirements.
As a consequence of each province taking a somewhat different approach, there are differences in these restrictions which anyone contemplating travel into or within Atlantic Canada needs to be aware before setting out.
Nova Scotia is the only Atlantic Province which has not expressly banned travel to the province. In response to the growing COVID-19 global pandemic, Nova Scotia first enacted its state of emergency on March 22, 2020, under the authority of section 12(1) of the province’s Emergency Management Act (the “EMA”). The state of emergency has since been extended until noon on May 31, 2020. Pursuant to section 14 of the EMA, by enacting a state of emergency, the province is permitted to control or prohibit travel within Nova Scotia.
On March 23, 2020, the province utilized this power to tighten all entry points to the province (land, sea and air). In keeping with these restrictions, all of Nova Scotia’s borders are being closely monitored and managed. Checkpoints at every major point of entry to the province have been set up. Those entering Nova Scotia from any entry point will be informed of the mandatory self-isolation requirements (detailed below) and will be asked about their plan to self-isolate beginning on the first day they enter the province.
Nova Scotia’s provincial government, under the authority of section 32 of the province’s Health Protection Act (the “HPA”), is requiring anyone entering Nova Scotia from out of province to self-isolate for 14 days. At this point, Nova Scotia’s provincial Conservation Officers questioning and screening travelers entering Nova Scotia through its shared land border with New Brunswick have not been granted the power to turn people away; however, police in the province are authorized to enforce orders under the HPA, including those relating to self-isolation and social distancing practices.
Despite the above restrictions, the province has exempted a number of people (on the condition that they are healthy) from the self-isolation requirement upon entering the province. Those exempted include the following:
- People crossing into Nova Scotia from New Brunswick on an ongoing basis for work, which, without limitation, includes: health care workers, community service workers, critical infrastructure workers and law enforcement or corrections workers;
- Medical supply or pharmaceutical workers;
- Individuals who are visiting Nova Scotia for essential medical care (these individuals are permitted to have one “support person” travelling with them):Members of the Canadian Armed Forces, Coast Guard and RCMP;
First responders, including police, fire and EHS paramedic workers;
- Trade and transport workers employed in the movement of goods and people across Nova Scotia borders (land, air or sea), including truck drivers, marine vessel or train crew, maintenance and operational staff; and
- Fishers that arrive from another province and travel directly to a fishing vessel, where they remain at sea for a minimum of 14 consecutive days without leaving the vessel for any reason.
Apart from those governed by the above exemptions, individuals intending to travel to the province for business-related purposes should be prepared to self-isolate for 14 days upon arrival. Finally, though Nova Scotia has announced that COVID-19 related restrictions within the province will be eased over time, the province has not indicated when the above travel restrictions will be relaxed.
Since March 19, 2020 the New Brunswick government has issued a series of mandatory orders under New Brunswick’s Emergency Measures Act in response to the public health threat posed by COVID-19, which include restrictions on interprovincial travel. In particular, the New Brunswick government has imposed the following restrictions:
- All “unnecessary travel” into New Brunswick has been prohibited, and any person entering into New Brunswick must stop for questioning by a peace officer to explain the purpose of their travel. “Necessary travel” is deemed to include residents of other provinces who must enter New Brunswick to work or to receive medical treatment; commercial vehicle drivers delivering goods; and New Brunswick residents who have been out of province temporarily and are returning home;
- Any person entering New Brunswick must self-isolate for 14 days upon their entry, which could be extended if they experience symptoms of COVID-19 during that period. New Brunswick’s Chief Medical Officer of Health has authorized some limited exceptions to the requirement to self-isolate, including for workers who are healthy and: a) provide or support essential services (including transportation of goods and maintenance of critical infrastructure) or b) live in or near an interprovincial border community, and commute to work interprovincially on a regular basis; and
- As of April 28, 2020, temporary foreign workers have been prohibited from entering New Brunswick. This does not affect temporary foreign workers who were lawfully in Canada as of April 28, 2020, or those who have a work permit issued through the New Brunswick Provincial Nominee Program or the Atlantic Immigration Pilot.
The New Brunswick government intends to lift its state of emergency restrictions, including travel limitations, in phases. On May 8, 2020 New Brunswick entered phase 2 of a 4-phase recovery plan, and will likely move into the 3rd phase between May 22 and June 5, 2020, provided there is no resurgence of COVID-19 in the province. Under the 3rd phase, strict border controls will continue, though it is anticipated that the requirement to self-isolate upon entry into New Brunswick will be eased. The government has indicated that it intends to maintain some form of interprovincial border controls until a vaccine or other effective treatment for COVID-19 becomes available.
For the time being, individuals coming to New Brunswick for work purposes should be prepared to answer peace officers’ questions upon their arrival and to explain why their travel to New Brunswick is necessary. Businesses should also anticipate that any employee traveling into New Brunswick for work will likely be required to self-isolate for 14 days upon entry. For more information about New Brunswick’s travel restrictions, exceptions, and recovery plan, see: https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/recovery.html
Prince Edward Island
On April 17, 2020, Prince Edward Island’s Minister of Justice and Public Safety declared a state of emergency in the province due to COVID-19. As a result, for the time being, all non-essential travel into Prince Edward Island is prohibited.
The Ministerial Order provides that “non-essential travel” includes, but is not limited to, persons entering the province to make non-essential purchases, sales and deliveries, persons entering the province for social or recreational purposes (including to live at seasonal/commercial properties for a temporary period), and any other non-essential travel as may be directed by PEI’s Chief Public Health Officer.
Screening measures are in place at all entry points to the province including the Charlottetown Airport, Confederation Bridge, and PEI-Isle de la Madeline Ferry, and Peace Officers are authorized to turn away any person who attempts to enter the Province for non-essential travel.
To minimize these occurrences, PEI has implemented a Pre-Travel Approval Process. The kind of travel which may qualify for pre-approval includes persons entering the province to provide essential services (i.e. services that, if interrupted, would endanger life, health or personal safety), persons traveling for emergency medical purposes (including to accompany animals for emergency services at the Atlantic Veterinary College), and persons exercising or facilitating custody and/or access with children.
While “essential” service providers may still be permitted entry into PEI, we note that a Public Health Order remains in place in the province which requires anyone coming into PEI to self-isolate for 14 days upon arrival. Practically speaking, this may impact even “essential” business travel as it may not be feasible for these travelers to self-isolate for 14 days upon arrival.
We note that although some self-isolation exemptions are in place for “essential workers”, the Public Health Order strictly circumscribes those who are exempt from self-isolation to include, for example, persons engaged in the infrastructure, agriculture, fisheries, transportation and healthcare sectors.
Presently, PEI’s state of emergency – and the associated travel restrictions – are in place until June 14, or until renewed or terminated by the Minister of Justice and Public Safety. There have been no indications to date as to when the province may begin to open its borders to non-essential travel; however, PEI has announced that it will start allowing applications for seasonal residents to come to the province, with the expectation that they could start arriving as soon as June 15th. These seasonal residents must have approval before they can travel to PEI. More information on Prince Edward Island’s travel restrictions can be found here.
Newfoundland and Labrador
On April 29, 2020, the Chief Medical Officer (“CMO”) for Newfoundland and Labrador amended the Special Measures Order to include new travel restrictions for all individuals arriving in Newfoundland and Labrador from outside of the province (these amendments can be found here).
Accordingly, effective May 4, 2020, the only individuals permitted to enter Newfoundland and Labrador are:
- Residents of Newfoundland and Labrador
- Asymptomatic Workers who are subject to the Special Measures Order; and
- Those permitted by the CMO to enter Newfoundland and Labrador due to extenuating circumstances.
Despite the province’s 5-level alert system detailing the re-opening of businesses and the relaxation of social activities, the timeframe for easing these travel restrictions is currently unknown. According to the Special Measures Order, however, the CMO is required to review the Order at least once every five days.
It is important to note that a failure to comply with these restrictions is an offence, punishable on summary conviction, pursuant to section 56 of the Public Health Protection and Promotion Act.
Residents of Newfoundland and Labrador
The provincial government has specified that a resident of Newfoundland and Labrador is someone who is either lawfully entitled to be or remain in Canada and makes his or her home in the province; or ordinarily resident in the province. For greater clarity, the government has stated that tourists or visitors are not included in this definition.
Upon travelling to Newfoundland and Labrador, the individual would simply have to prove residence by showing a piece of government issued photo identification, or, in the absence of photo identification, a valid Newfoundland and Labrador MCP card, plus one of the following documents: valid MCP card (if also presenting photo identification); a valid Newfoundland and Labrador motor vehicle registration certificate; a 2018 or 2019 Canada Revenue Agency income tax return identifying Newfoundland and Labrador as their Province of residency; or a bank/credit card statement with a Newfoundland and Labrador address. Unless exempted under the Updated Exemption Order, any person travelling to Newfoundland and Labrador is required to self-isolate for 14 days upon arrival.
Pursuant to the Updated Exemption Order made on April 22, 2020, asymptomatic workers who are “essential to the movement of goods and people, protection of the food supply chain” or, who are “essential to preserving life, delivering patient care and life-saving service” are permitted to travel to Newfoundland and Labrador. These workers include those working in trade, transportation, fishery, mining, agriculture, hydro-electric and oil and gas sectors, as well as those working as essential health care workers. It should also be noted that these workers are exempt from the 14-day self-isolation requirement.
Individuals with Extenuating Circumstances
Lastly, the provincial government is permitting individuals to enter the province where there are extenuating circumstances. The government has provided the following examples of what may be considered “extenuating circumstances”:
- Travel due to medical issues (including providing care to ill family members)
- Relocation or extended stay in Newfoundland and Labrador (i.e. For work or retirement, job loss, short-term work or education, finishing an out of province school term)
- Children returning to Newfoundland and Labrador to live with other parent/guardian
- Companies in other provinces that have to bring supplies, vehicles, etc. to Newfoundland and Labrador but are not essential services (Employees will need to either leave immediately or self-isolate for 14 days).
For those with extenuating circumstances as exemplified above, you would need to fill out the Travel Restrictions Exemption Request Form, which can be found here. It is important to note, however, that such applications are considered by the CMO on a case-by-case basis, and approval is not guaranteed. If an individual is approved, the government has made clear that individuals are still required to self-isolate for 14 days upon arrival, unless they are exempted by the Updated Exemption Order. Where an exemption request is not approved, individuals may request, within 7 days of the Order, that the CMO reconsider her decision.
With these restrictions in place, it would be prudent for businesses to proactively prepare the necessary documentation so that if an exemption request form is required, they are able to submit their request promptly. Moreover, businesses should also consider the impact these restrictions may have on non-resident employees or prospective employees who are relocating to Newfoundland and Labrador.
These travel restrictions have been attracting criticism and challenge. Much of the commentary has been to question the constitutionality either of the provisions or their enforcement mechanisms, in the context of the Charter or Rights and Freedoms. In New Brunswick, the Canadian Constitution Foundation has publicly announced that it is looking for a test case to challenge the constitutional validity of the New Brunswick provisions. In Newfoundland and Labrador, cases have been launched to challenge the constitutional validity of the province’s travel restrictions upon the denial of entry of a woman originally from the province, who was denied entry into the province following her mother’s death. Further, the provincial branch of the Canadian Bar Association has expressed concerns about the constitutionality of enforcement measures recently passed on an expedited basis through the Newfoundland and Labrador legislature. There have not yet been hearings or decisions in respect of these challenges, and in the meantime there is little indication of action by the provincial government to modify the legislation or powers being exerted in response to these challenges. As a result, for the foreseeable future the restrictions that have been put in place would be expected to continue.
Practical Implications for Businesses
In the rapidly-developing context of these restrictions, any business travel within or to the Atlantic Canada region should be re-evaluated. In all jurisdictions, an individual would have to assume they would be subject to a 14 day self-isolation regime, unless they qualify for exceptions. However many will find they simply cannot enter the province in question, due to the prohibitions in place, and may be turned away prior to or at arrival. Checking ahead with the relevant authorities prior to starting any such travel is highly recommended.
If you have any questions about these travel restrictions, or any other questions about how COVID-19 restrictions may affect your business activities in Atlantic Canada, do not hesitate to contact the authors of this article or your local office of Cox & Palmer.