McLennan Ross Update for Tuesday

By McLennan Ross Labour & Employment Team

What we are seeing

• Alberta's Chief Medical Officer of Health, Dr. Hinshaw, stated bluntly on July 27, 2020 that Alberta's curve measuring new COVID-19 infections is no longer flat and is trending upward at a worrisome rate. Since moving from Stage 1 to Stage 2 of the relaunch strategy, Alberta has seen the number of active cases skyrocket from 403 to 1,430.
• With the worrisome trend identified by Dr. Hinshaw in mind, but with the goal of not moving back to Stage 1, a number of municipalities across Alberta are either considering or have already announced public mask bylaws. The City of Edmonton will hold a special meeting on July 29, 2020 to debate and vote on such a bylaw, which would be effective August 1, 2020.
  

What we are hearing

• The City of Calgary issued the text for its new mask bylaw. It also issued a business operators guide to assist in understanding the scope of the bylaw. The new mask bylaw and business operators guide are both available here.
  
• Key takeaways from the text of the bylaw and the guide include:
• Businesses are required under the bylaw to post specific signage attached as Schedule A to the bylaw. Although the City of Calgary has said that business operators will not be obligated to enforce the bylaw by evicting persons refusing to comply with it, the bylaw does make it an offence to contravene any portion of the bylaw. This would appear to make it possible that businesses can be fined for not posting the required signage.
  
• The bylaw does not make it mandatory for a bylaw officer to issue a violation ticket if there has been a contravention of the bylaw, making it clear that warnings will likely be the short-term result of a violation.
  
• In unusual circumstances, such as a wanton breach of the bylaw, the bylaw permits the bylaw officer to issue a violation ticket, which requires a court appearance. The bylaw allows the Court to deviate from the specified penalty "if the totality of the circumstances surrounding any contravention of this bylaw indicate a marked endangerment or increased risk of endangering public health".
• The bylaw contains a list of exceptions where it does not apply. The business operators guide states that proof is not required if someone claims to be excepted from the operation of the bylaw and businesses are not expected to deny services to persons not wearing a mask.
  

What we are saying

• One of the questions that is not specifically addressed in the text of the bylaw or the business operators guide is whether the waiting area of an office space would be considered a public area.
  
• Although obviously subject to change once particulars are provided, it is our expectation that such a waiting area would not be considered a public area. Although most anyone can enter into a waiting area during business hours, only those invited to be there by having business to discuss with someone at the office space would be allowed to stay. As such, we believe that the bylaw may indicated that such places are analogous to a place that can only be accessed through membership or invitation.