Many Canadian businesses rely on regular cross-border trips by US-based workers. Whether it is to maintain machinery and equipment or oversee operations, these visits are usually of short durations and are time-sensitive. Sometimes, the US based workers are even Canadian citizens or permanent residents who still have to isolate for 2 weeks upon arrival in Canada. Other times, they are just coming in as (IRPA section 186) business visitors or may have NAFTA or Intra Company Transferee work permits covering their time in Canada.

The mandatory 14-day isolation period really throws a wrench into things (I know, terrible pun), because suddenly a 3-day visit to repair a piece of equipment becomes a 17 day visit, the first 14 of which the equipment cannot be touched by the worker.

So what can Canadian organizations do to ensure that (1) they are adhering to public health rules and doing their part to stop the spread of Covid-19 and (2) keep their Canadian operations running smoothly so that delays don’t negatively impact their Canadian employees, market competitiveness or production?

Some form of travel restrictions are likely for the foreseeable future. And even if you are allowed to travel, the 14 day isolation is now the default. This is all mandatory by provincial public health orders and section 58 of the Quarantine Act:

Emergency Orders
Order prohibiting entry into Canada

58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that

(a) there is an outbreak of a communicable disease in the foreign country;

(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;

(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and

(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.

However, there are exceptions to the rules. The current exemption process involves requesting both federal and provincial approval. The federal process is outlined here:

Federal exemption to mandatory quarantine (14 day isolation period):

The Canadian Border Service Agency (CBSA) in conjunction with the Public Health Agency of Canada (PHAC) are given the authority to grant exemptions from quarantine required by the federal order (OIC 10). Whether an exemption from quarantine is granted to an individual under the federal order is determined solely by the CBSA and PHAC. Information regarding requirements for an exemption to the Federal order can be found here.

PHAC issues letters of interpretation and provides an assessment as to whether an individual qualifies for an exemption under OIC 10. The letter is useful for anyone seeking entry to Canada as it is an important piece of information for CBSA to consider when making their final determination to permit entry and exemption from the quarantine requirements.

Federal Eligibility:

Who is eligible to travel to Canada: Foreign nationals, including United States (US) citizens, can travel to Canada only if they’re eligible. Restrictions vary depending on where you are coming from.

If you’re travelling to Canada from outside the US
You must be both:
• exempt from the travel restrictions and
• travelling for an essential (non discretionary) purpose

All other foreign nationals:
To be eligible, you must meet 2 requirements:
•You must be travelling for an essential (non-discretionary) purpose
•You must be either
· travelling directly from the US
· exempt from the travel restrictions

Travelers coming from outside the US who are exempt from the travel restrictions:
• any person who does not pose a significant harm to public health, in the opinion of the Chief Public Health Officer of Canada, and who will provide an essential service while in Canada

Federal exemption provisions for essential service workers

Pursuant to paragraph 6(e) of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 2, issued pursuant to section 58 of the Quarantine Act, the Chief Public Health Officer may determine a class of persons who provide an essential service while in Canada.

As determined by the Chief Public Health Officer, at this time, the following class of persons are exempt:

Persons in the trade or transportation sector who are important for the movement of goods or people, including truck drivers and crew members on any aircraft, shipping vessel or train, and that cross the border while performing their duties or for the purpose of performing their duties;

Persons who must cross the border regularly to go to their normal place of employment, including critical infrastructure workers (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing), provided they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada; and

Technicians specified by manufacturer, or the manufacturer warranty, as required to maintain or repair equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing).

Ultimately, the federal exemption is determined by the officer at the port of entry (CBSA and PHAC), but having a letter of interpretation is meant to be a helpful tool in that assessment.

Provincial exemption to mandatory quarantine (14 day isolation period):

Travellers seeking an exemption must also contact the provincial authority for approval, since the isolation requirement is both federal and provincial jurisdiction.

Provincial rules vary but generally speaking, to request named individuals and/or classes of persons be exempt from the a provincial order, information and plans must be submitted as specified by the provincial medical authority. The information provided will be used to determine if the specified individuals and/or classes of persons satisfy the requirements for an exemption to the provincial order.

An exemption provided by a province will be conditional and will be limited to allowing the person(s) identified in the exemption the ability, within the first 14 days upon entering the province, to travel to and from their accommodation or residence to the work locations where they are performing their essential service work related duties. Where an exempted person during that 14 day period has any symptoms or is confirmed to have COVID-19, the person will be required to quarantine and cease performing their work related duties in accordance with the requirements set out in the provincial order. This type of exemption will not permit the individual to attend recreational activities, formal events or social gatherings until the 14 day period has expired.

More information and the links to the various provincial authorities can be found here.

Anecdotally we have heard about a lot of inconsistency and confusion at ports of entry. Given this, we are advising the Canadian employers of US-citizens to seek both provincial and federal approvals in advance of travel and provide information to both authorities that includes, at minimum:

Point of contact with Canadian entity
Location of worksite(s)
Names of employees or contractors or class of essential service (name, address, contact and phone number while in Canada)
Arrival and departure dates
Rationale for classifying as essential service workers
Corporate Covid-19 plan describing precautions to keep workers safe
Accommodation plan (i.e. at hotel or rental) to ensure travelers necessities and precautions are being met
Travel arrangements to and from Canada and while in Canada, to and from worksite

Once this process is complete, the person can book their trip and ensure they carry proof of the exemptions and all supporting documents to provide to CBSA and PHAC at the airport or land border crossing.

So far, we have received favorable responses from federal and provincial authorities for requests we have made and it seems to make life easier for CBSA if the traveler can provide these documents, which shows, among other things, that they and their employer have turned their minds to where they fall under the exemptions and how public health will not be put at risk if the traveller is not required to quarantine.

To be sure, this two-step approach is a little more red tape than anyone wants to have to deal with. But when Canadian critical infrastructure is at stake, it seems like a reasonable balance between ensuring Canada remains safe and, as much as possible, minimizing the disruptions on products and services that the public depends on.

For more information or to book a consultation on this or any travel-related issue, please contact us.

The sentiment may be holiday-induced, but certain passages in Vavilov feel like sips from a cup of fresh eggnog.

The Court’s take on choice of standard may spill the most ink in administrative legal circles. Yet, it is snippets from the Court’s subsequent master class on “Reasonableness & the Culture of Justification” that immigration litigators should hang on their Christmas trees. Some, dare we hope, may become actionable tools for immigration litigators to challenge the vague/perfunctory/boilerplate reasons for refusal that, at times disconcertingly, define our client’s lives.

For instance, when dozens (read: hundreds) of pages of submissions are done away by three-lined reasons in GCMS, with (at-best) life redefining consequences for a client, let us say that our faith in the Decision Maker tends to dwindle.

Well, the Court may have given us hope to believe again:

We discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. (Vavilov, at para 106)

The “potential impact of the decision” on our clients is the raison d’être of our submissions. That both it and our submissions have become standalone elements in the reasonableness analysis is promising.

Still, there remains the (quasi-existential) dread that the inclusion of the phrase “I have considered the evidence before me” could, ipso facto, reasonably efface a hundred pages of submissions. The Court has given us more reasons to hope:

The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties. (Ibid, at para 127)

Hold on, does actual listening entail meaningful grappling with the submissions? Well, yes:

[…] a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”(Ibid, at para 128)

This is progress. Now, on to power dynamics:

Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. (Ibid, at para 135)

So with great administrative power comes the great responsibility to demonstrate consideration for its consequences on individual lives? GCMS, meet humanity.

And last, but not least: to all who have had to explain to their clients that twelve or more months of uncertain federal court proceedings could – success notwithstanding – result in a fresh refusal:

An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed. (Ibid, at para 142)

The endless merry-go-round of judicial reviews was never fun for anyone. We now have a shot at a ticket to hop off it.

Does this mean that a “win” in court could now, sometimes, mean just that for our clients?

Now there’s a Christmas wish.

PS: The holidays could have had a much sourer taste for our profession.

Picture challenging those three-lined GCMS reasons under Abella and Karakatsanis JJ’s alternative take on the reasonableness standard:

[…] Reasons should be approached generously, on their own terms. Reviewing courts should be hesitant to second-guess operational implications, practical challenges and on-the-ground knowledge used to justify an administrative decision. Reviewing courts must also remain alert to specialized concepts or languageused in an administrative decision that may be unfamiliar to a generalist judge (Newfoundland Nurses, at para. 13; Igloo Vikski, at paras. 17 and 30). When confronted with unfamiliar language or modes of reasoning, judges should acknowledge that such differences are an inevitable, intentional and invaluable by-product of the legislative choice to assign a matter to the administrative system. They may lend considerable force to an administrative decision and, by the same token, render an applicant’s challenge to that decision less compelling.Reviewing courts scrutinizing an administrative body’s decision under the reasonableness framework should therefore keep in mind that the administrative body holds the “interpretative upper hand” (Vavilov, joint concurring reasons of Abella and Karakatsanis JJ, at para 297).

 *shivers*

By Guilhem de Roquefeuil

North Star Immigration Law rented a house in Guadeloupe from late April to early June 2019. Our lawyers took turns going for a week or 2.

It was a small, cute house with good wifi and a nice pool:

The house came with a spectacular cat, one we almost brought home until we realized her hunting passion and prowess would be stifled in our office, since we have no lizards/birds/snails/hermit crabs/bats/moths/you-name-it-she-kills-it:

There was an outdoor trapeze school down the road from the house ( École de Trapeze Volant!):

Guadeloupe, being an overseas French Department, is a really interesting mix of Caribbean/Creole culture and France. Bakeries everywhere. Duck confit, cheap wine and good cheese in the grocery stores. And this, Hibiscus juice, the most spectacular of drinks:

Guadeloupe has a slow-pace, where you have to watch for crab-traffic in parking lots:

And cows on the way to the beach:

Pop-up Law Office, Lessons Learned:

I think it is fair to say, with only a week or 2, and with the beach, sun, cows, crabs and cats to occupy you, it’s hard to get settled and to get any real work done.

I assume everyone does this when their colleagues are on vacation – you try to give them time and space but always end up sheepishly emailing them once or twice, knowing you shouldn’t bother them, but only they have the answer/insight into a question, so maybe if they have a second, no rush, no pressure, they can give you some guidance? The fact that we could email each other while they were in Guadeloupe without feeling totally guilty since it was a “working holiday”, was great. And when it was your turn to be there, there was no expectation to get any massive file work done (except Cam and his PF submission that I’m hoping he at least wrote while sitting on the pool ledge). But an hour or two in the morning of replying to emails and the odd CSE, or giving feedback on something, was all that was needed.

So what did we do?

Sophie went jet skiing (photo pre-jet-ski):

Cam hung out in the rainforest:

Guilhem climbed the volcano:

Lori went to the beach:

And I stayed pretty close to home, this was the walk to the beach behind our house:

Wandering around the capital, Pointe a Pitre is very interesting:

See the artist’s Insta page here and FB page here.

Most of us made it to the ACTe, the International Memorial dedicated to the memory and history of the Slavery Trade. It is such an important place, I wish it was better known, because spending time there is a profound and life-changing experience.

Of everything, the highlight for me on this trip was a song. We were last in Guadeloupe with our kids (ages 5 and 9 at the time) 3 years ago, and we also spent a day at the ACTe. We paired up: my partner took our 9-year-old, and I went with our 5-year-old, Louisa. For the main exhibit, the audio tour is mandatory, even for kids. I remember Louisa and I finished the exhibit first, and as we stepped out into the final corridor, which is a tribute to heroes who have fought against slavery and oppression, the loveliest song started to play. As we stood at the end of the tour waiting, we watched strangers step out into that corridor as the same song started to play in their audio tour. Without exception, everyone started to tap, snap, shake or shimmy to the rhythm of that song. Whether consciously or not, that song makes you dance your way out the door of one of the saddest and most sobering places on earth.

I never found out what the song was, thinking I could find it online.
But of course, I never did.

This time, it was my first question after buying the entrance ticket.

The answer: Miriam Makeba, Pata Pata