By Tristan Marks
Some may have heard of issues, others may have seen a confrontation first-hand, but incidents and tension regarding mandatory mask use in enclosed public-access spaces seems to be on the rise.
“Many business operators have called or emailed me in the last 10 days looking for clarification of the Niagara Region’s mask bylaw,” said Mike Williscraft, president of Grimsby Downtown Improvement Area (DIA) Board.
“The issue is not the merits of the bylaw but enforcement, which the Region has put on the shoulders of each individual business. Residents have also called after seeing a customer ream out an employee who does nothing more than remind that customer a mask is mandatory.”
A key point of the issue is the exemption which the Region included for those with a health exemption, or age.
In an email to Niagara Region medical officer of health, Dr. Mustafa Hirji, Williscraft explained how the implementation of the bylaw is impacting businesses day-to-day.
“There are stores not allowing patrons in with no mask, no exceptions. It causes great harm and stress for them to do this, but with staff being left as the front-line enforcement, they have had to ban all, as staff have refused to serve people, and other customers who were wearing masks have dropped items in-hand and left stores when they see another customer with no mask,” noted Williscraft.
“The question remains, are business owners entitled by the bylaw to bar anyone from entering their premises? It does not seem so from reading the bylaw. The bylaw appears to sidestep taking that responsibility and hand it to business owners and their staff.”
Hirji said the interpretation of the bylaw is not a health department concern.
“I appreciate the challenge. These are legal questions concerning interpretation of the bylaw, not “health questions. As I am a public health professional and not a lawyer, it’s not within my expertise to answer these questions,” said Hirji.
“I recommend (businesses) consult with a lawyer who has expertise in municipal law, and that stores who are unsure of their rights similarly seek legal advice on what they are legally permitted to do.”
Williscraft noted, while legal definitions are to be appreciated, the overall situation creates a public relations nightmare for businesses.
“Everybody wants to do the right thing. Everybody wants to keep staff, customers and the public safe. However, businesses are trying to do everything possible to encourage people to come out of their homes and into their stores,” said Williscraft.
“You have people on social media taking shots at businesses for enforcing the bylaws and these attacks – no matter how off-base – have a way of taking root. Nobody can afford that in this climate.”
Tuesday morning, Donna Gibbs, Niagara Region’s director, legal and court services attempted to clarify the Region’s view.
“Similar to numerous face covering by-laws across Ontario, the Region’s by-law imposes a requirement for individuals to wear a face covering in enclosed public spaces, subject to certain exemptions based on health, age etc., and requires businesses to have a face-covering policy, in the interests of reducing the spread of COVID-19 in the community,” wrote Gibbs in an email.
“We certainly recognize that the implementation of the face-covering by-law, in addition to the other requirements imposed on businesses by the Province/other regulatory authorities in response to COVID-19, does require a careful consideration of the rights and responsibilities of businesses in relation to their employees (such as the Occupational Health and Safety Act) and their customers/clients (such as the Ontario Human Rights Code). Unfortunately as legal counsel for the Region, I am not able to give specific legal advice to members of the public or private businesses, but would encourage businesses to seek their own legal advice if they have questions in that regard or need legal support to develop their operational plans in response to COVID-19.”
Gibbs included information for the Law Society of Ontario’s Lawyer Referral Service, which can refer individuals to a lawyer who will provide up to 30 minutes of free legal advice. Any business requiring this service can contact Williscraft at: email@example.com
Daryl Barnhardt, executive officer to the Regional Chair, Jim Bradley, outlined his comments to inquiries he has received.
“Private establishments are able to choose with whom they conduct business,” said Barnhardt.
The by-law passed by regional council requires businesses to have a policy that mandates a face covering. Moreover, our by-law also outlines exemptions for medical reasons (proof is not required), as well as a list of other exemptions. That said, if a business takes a “no exceptions” stance on the issue, then that is that particular business’ policy and the Region has no involvement in providing “back up”.