COVID-19 Developments and Legal Updates
New pre-boarding COVID-19 testing requirements
On December 31, 2020, the Honourable Marc Garneau, Minister of Transport, announced new pre-boarding COVID-19 testing requirements that would be coming into effect in short order. In particular, as of January 6, 2021 at 11:59:59 pm Eastern Standard Time all persons are now required to provide evidence that they received a negative result for a COVID-19 molecular test before they board an aircraft for a flight to Canada.
The test must have been performed on a specimen that was collected no more than 72 hours before the initial scheduled departure time for the flight. For clarity, simply having a test result dated within the past 72 hours is not sufficient if the test was performed on a specimen collected further in advance.
This applies to all travellers boarding flights to Canada, including Canadian citizens. The very narrow exemptions that exist include:
- anyone under five years of age;
- certain crew members;
- emergency service providers;
- technical stops / flights refueling;
- some individuals who are considered to be providing an essential service in the Chief Public Health Officer’s opinion or those whose presence in Canada, as determined by the Minister of Health, is in the national interest; and
- certain government officials and similar.
These exemptions are outlined in the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (“Quarantine Order”) and in Transport Canada’s Backgrounder, Pre-departure COVID-19 testing and negative results for air travellers coming to Canada.
Country and territory-specific exceptions
The 72 hour requirement poses difficulties for those travelling from countries where test results are taking more than three days to process. The Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 18 (“Interim Order”), made pursuant to the Aeronautics Act, does provide some relief in that it grants an extended 96 hour period for those boarding aircrafts for flights departing from a country or territory listed in Schedule 2 of the Interim Order. Colombia, Cuba, Mexico, and Trinidad and Tobago are among the 28 countries and territories listed that benefit from the extended time period; however, this extension only lasts until January 14, 2021, after which the requirement for those departing from these locations will presumably also be 72 hours.
There may be other countries where test results are taking longer than 72 hours that are not included on this list, which will certainly impact travel plans for both Canadians and foreign nationals seeking to fly to Canada.
Additionally, these new measures do not apply to anyone boarding an aircraft for a flight departing from Haiti, nor do they apply to those boarding a flight from Saint Pierre and Miquelon until January 13, 2021 at 11:59:59 pm EST. A separate Transport Canada Backgrounder, COVID-19 pre-departure testing and Transport Canada’s Interim Order, notes that the exemption for those flying from Haiti is proposed to expire January 21, 2021.
Required evidence of test result
The Interim Order and Quarantine Order clarify that evidence of a negative result for a COVID-19 molecular test must include:
- the person’s name and date of birth;
- the name and civic address of the laboratory that administered the test;
- the date the specimen was collected and the test method used; and
- the test results.
Further, the Interim Order and Quarantine Order provide the following definition of what a COVID-19 molecular test involves in subsection 1(1) and (1) respectively:
a COVID-19 screening or diagnostic test, as the case may be, carried out by an accredited laboratory, including a test carried out by the method of polymerase chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification (RT-LAMP).
If this evidence cannot be provided prior to boarding the aircraft, the traveller will not be permitted to board.
Note that while this definition mentions the test must be carried out by an accredited lab, this Transport Canada Backgrounder simply states travellers are presently “encouraged to make best efforts to have their test performed at a reputable laboratory or testing facility (e.g. one recognized by the local government or accredited by a third party, such as a professional organization or international standards organization)”, and that the Government of Canada will notify travellers should it become mandatory to obtain COVID-19 tests from specific accredited labs or facilities.
Impact on Canadians abroad
In a press conference January 6 with the Minister of Transport (along with the Minister of Foreign Affairs, Minister of Public Safety and Emergency Preparedness, and Minister of Health) it was mentioned there are no planned repatriation flights at the moment. It was pointed out that the government has been communicating the risks of travel and possibility of changing restrictions for some time and on a consistent basis.
It was suggested that Canadians abroad immediately begin researching locations where they can get their tests done to avoid travel delays. Those abroad were recommended to contact local authorities, consular offices and embassies abroad, tour operators, and airlines for assistance. These recommendations are reinforced by Transport Canada, which also encourages Canadians travelling abroad to sign up with the Registration of Canadians Abroad to enable them to receive important safety updates from the Government of Canada.
One Backgrounder from Transport Canada indicates that those travelling from a country where the testing is unavailable will be required to report to a designated Public Health Agency of Canada quarantine facility for the 14-day quarantine period on arrival. There is a provision (4(2)) in the Quarantine Order to support that those who were unable to provide the test evidence before boarding will need to quarantine at a quarantine facility. However, the second Backgrounder from Transport Canada emphatically states:
All travellers coming to Canada, regardless of citizenship, will be required to have this proof in hand at the time of boarding. Failure to do so will mean an automatic denial of boarding by the air carrier operating the flight to Canada.
Therefore, one could anticipate confusion during the boarding process regarding whether such travellers will be allowed on the plane to begin with.
There are still a lot of questions left unanswered as a result of this quick rollout of new measures. According to this CBC News article, airlines expressed significant concerns about the short timeframe provided to implement these new measures and pressured the government to delay the new requirements until later in the month. Based on the release of the Interim Order and Quarantine Order, the government clearly decided to move forward regardless.
Further, airlines have a history of taking a restrictive view of the travel rules during the pandemic. Air carriers who fail to comply with these new pre-boarding requirements can be subject to significant fines. This, coupled with a lack of clarity, would suggest that the trend of restrictive application of rules may continue.
The Transport Canada Backgrounder clarifies that even those who can show proof of vaccine will still have to abide by the new testing requirements.
Based on the aforementioned press conference, there did not seem to be any current plans to introduce similar measures for those entering Canada by land.
A final note is a reminder that these new measures are simply additions to other previously implemented measures designed to protect the health and safety of Canadians that still apply. In addition to obtaining the necessary COVID-19 test, all travellers bound for Canada should:
- In the case of foreign nationals, verify if they fall under an exemption to the travel restriction measures, given most non-essential travel is limited.
- Confirm any rules that may restrict entry to particular provinces or territories.
- Verify if they fall under an existing exemption to the quarantine requirements, or, as will typically be the case, be prepared to quarantine and show evidence of a detailed quarantine plan on arrival.
- Familiarize themselves with ArriveCAN requirements and submit any necessary pre-boarding information – those flying to Canada as a final destination must use ArriveCAN to submit certain information before boarding their flight to Canada, and, in most cases, will have to confirm arrival and complete daily check-ins during the quarantine period as well.
Our Immigration Group would be pleased to clarify any details of the above and provide an opinion on the ability to travel to Canada during the COVID-19 pandemic.