Why face masks might not be mandatory in Durham Region after all

July 8, 2020 by Paul McKeever

You may have seen in the news that it will be mandatory to wear a mask in commercial establishments in the Durham Region starting at 12:01 AM on July 10. However, as the law stands right now, that is false news. Unless the law is changed/extended, there will be no requirement to wear a mask, and there will be no fines for businesses or their patrons. Here’s why.

The alleged new law is actually an “instruction” set out in a July 6, 2020 letter from the Durham Region’s medical officer of health, Robert Kyle, which was addressed to “Commercial Establishments in Durham Region”. Kyle’s authority to issue such an instruction is given to him temporarily by subjection 4(2) of the Ford Government’s temporary Ontario Regulation 263/20 which pertains to Stage 2 of the reopening (from its closure of much of the economy due to Coronavirus2).

Titled “Order under 7.0.2(4) of the Act – Stage 2 Closures”, regulation 263/20 was made pursuant to subsection 7.0.2 (4) of the Emergency Management and Civil Protection Act, which allows for the making of regulatory orders “during a declared emergency”. The emergency itself was declared by way of the Ford government’s March 2020 issuance of Ontario Regulation 50/20.

The emergency is set to expire on July 15, 2020, though it was reported that the Ford government will extend the emergency one last time – to July 24, 2020 (to give the government time to pass new legislation discussed below). However, Regulation 263/20 is set to expire on July 10, 2020 (unless the Ford government extends it). Accordingly, at present, Robert Kyle has no authority to issue a mandatory mask law that takes effect 1 minute after he no longer has any power to impose it.

If the Ford government extends the life of regulation 263/20 beyond July 9th, then Robert Kyle will have authority to issue his mask-wearing instruction. If the Ford government does not extend the life of regulation 263/20, then Robert Kyle’s “instruction” will have no power to make anyone wear masks, and no power to impose fines.

In short: As of the time of publication of this July 8, 2020 report, Durham Region businesses have no obligation to start requiring their patrons to wear masks on July 10th.

Moreover, even if the expiration of regulation 263/20 were extended beyond next Tuesday, July 14, 2020, the regulation would die on July 15, 2020, when the emergency ends, at which point, Robert Kyle’s instruction would cease to have any legal effect. Subject to what I discuss below, Kyle’s mask mandate has no force or effect once the provincial emergency is ended.

Which brings me to the last piece of this report. On July 7, 2020, the Ford government introduced a new bill (Bill 195) titled An Act to Enact the Reopening of Ontario. Once it is proclaimed into force (probably during the week of of July 13th) it will end the provincial emergency. It also will allow the government to turn emergency regulations into regulations that do not require the provincial emergency to be in effect.

Why bother doing that?

One possibility is that the government wants to keep the regulations in place, but feels it is getting increasingly controversial to call the current state of affairs an “emergency”. Coronavirus2 testing is showing a decreasing number of people are testing positive for the virus. The hospitals are not under any strain due to Covid-19. Indeed, the anticipated demand for hospital resources has never happened, whether the “curve” was “flattened” or not.

Another possibility? It may be the case that the province no longer wants unelected local health officials to create a subjective, patchwork quilt of health policy across the province that interferes with an orderly centrally-planned “Reopening of Ontario”. If the province is indeed going to try to “re-open” the economy (you know: the economy that it shut down), it may have to disempower local health officials who oppose the province’s policy direction.

Also, whether it is a motive or not, when the emergency ends, so does the effect of a July 6, 2020 court order (which was sought by the Ford government, mind you) that prevents landlords from evicting tenants until the end of the month in which the emergency ends. Book your U-Haul today, tenants.