Government restricts travel to Canada by foreign nationals

Denial of boarding to foreign nationals
Health check rules


On 17 March 2020 the minister of transport issued an interim order regarding the denial of boarding to foreign nationals on international flights to Canada and a health check that air operators flying to Canada must conduct prior to boarding. The interim order also includes monetary penalty provisions, though they are not summarised in this article.

Denial of boarding to foreign nationals

The rules regarding denial of boarding to foreign nationals on flights destined for Canada took effect at 12:00pm (Eastern Daylight Time) on 18 March 2020.

Contrary to what had been widely reported in the media and repeated by members of the Canadian government in the two days leading up to the issuance of the interim order (including by Prime Minister Justin Trudeau), there is no exemption in the Canadian COVID-19 regulations for US citizens.

In fact, only Canadian citizens (and permanent residents) are exempted from the regulations requiring denial of boarding on the basis of citizenship or nationality.

However, there is an exemption to the prohibition on travel by air to Canada by foreign nationals based on where in the world they have been in the 14 days prior to the international flight they are seeking to board. If a foreign national has been in any country other than the United States or Canada in the 14 days prior to the flight, they must be denied boarding. Practically speaking, this means that:

• no foreign national may board any flight to Canada from any country other than the United States; and
• only foreign nationals who have only been in the United States or Canada in the 14 days prior to their flight may board a flight to Canada from the United States (ie, any foreign nationals, including non-US citizens, are allowed to board if it is established that they have not been in any country other than the United States and Canada in the 14 days before the flight).

There are a number of other exemptions set out in Section 5 of the interim order, including, but not limited to:

• air crew members:
• transiting passengers (ie, foreign nationals who are only flying to Canada to connect to a flight elsewhere in the world); and
• immediate family members of both Canadian citizens and Canadian permanent residents.

An 'immediate family member' is defined as:

• the spouse or common-law partner of the person;
• a dependent child of the person or of the person's spouse or common-law partner; or
• a dependent child of a dependent child referred to in the second bullet point.

Additional, more specific exemptions listed in Section 5 are not described here.

In addition, on 20 March 2020 the Canadian government announced that exemptions for certain temporary foreign workers, certain international students and certain applicants for permanent residency would also come into effect. Individuals affected by these exemptions have been advised to await the finalisation of these exemptions.

Health check rules

The pre-boarding health check rules took effect at 12:01am (ie, one minute past midnight) on 19 March 2020 Eastern Daylight Time.

The health check that air operators must conduct consists of asking questions at the boarding gate of every person prior to boarding an aircraft for a flight to Canada. These questions may be asked by an employee at check-in or via an electronic check-in kiosk, according to guidance material distributed by Transport Canada.

According to the interim order, all passengers, regardless of nationality, are to be asked questions "regarding any signs and symptoms of illness suggesting respiratory infection" as referenced in the World Health Organisations's Management of ill travellers at Points of Entry – international airports, seaports and ground crossings – in the context of COVID -19 outbreak.(1)

The draft order specifies that the following symptoms about which questions are to be asked are of particular importance:

• a fever higher than 38°C or feeling feverish;
• a cough; or
• breathing difficulties

In addition, air carriers must ask every person "if they have been refused boarding in the past 14 days due to a medical reason related to COVID-19". Further, carriers must advise each person "not to provide answers… in a way that they know to be false or misleading".

Guidance material distributed by Transport Canada states that the following questionnaire is to be administered by air operators flying to Canada:

If the response to any of the four questions below results in the answer that is in bold, then a denial of boarding must be applied, in accordance with the Interim Order.

1. Do you have fever or feel like you have a fever? (If a thermometer is available, then 38°C or above indicates a fever.) If YES, deny boarding.

2. Do you have cough? If yes, ask "Is this normal for you?" If yes, allow boarding. If NO, deny boarding.

3. Do you have difficulty breathing? If yes, ask "Is this normal for you?" If yes, allow boarding. If NO, deny boarding.

4. Have you been refused boarding in the past 14 days due to a medical reason related to COVID-19? If YES, deny boarding.

According to Transport Canada's guidance material, if an alternative to the above is proposed, including because a foreign country has already required the performance of a health assessment, the air operator should contact Transport Canada to request an exemption from the interim order.

The health check need not be conducted in respect of crew members or persons who provide a medical certificate certifying that symptoms suggesting respiratory infection are not related to COVID-19.

Air operators must also observe passengers prior to boarding and refuse boarding to any who may have signs or symptoms of COVID-19. Transport Canada's guidance material states that this observation may be done by a gate agent.

According to the interim order, all persons, regardless of nationality, must be refused boarding if they fall into one of the following categories:

• the person's answers to the health check indicate that they may have signs or symptoms of COVID-19 (if no medical certificate is provided);
• the air carrier's observations during the health check indicate that the person may have signs or symptoms of COVID-19 (and no medical certificate is provided);
• the person's answer to the additional question asked to them under Subsection 7(2) is in the affirmative (ie, the person confirms that they have been denied boarding in the past 14 days due to COVID-19); or
• the person is a competent adult and refuses to answer any questions asked of them under Subsections 7(1) or (2) (ie, the person refuses to answer the questions posed as part of the health check or the additional question regarding previous denial of boarding due to COVID-19).

For further information on this topic please contact Carlos P Martins or Andrew W MacDonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) The report can be downloaded here.