This article was last updated on September 10, 2020
While the term “unprecedented” is being used frequently in the context of the COVID-19 pandemic and the measures that have been taken in response to it, one context where the word can legitimately be applied is the restrictions to inter-provincial travel that have been introduced in Atlantic Canada. Travel between jurisdictions that previously would have occurred without second thought is now either banned outright or severely curtailed, and where permitted is subject to mandatory self-isolation requirements.
As a consequence of each province taking a somewhat different approach, there are differences in these restrictions which anyone contemplating travel into or within Atlantic Canada needs to be aware before setting out.
As of July 3 2020, residents of the Atlantic Provinces (Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador) will be able to travel to and between the other Atlantic Provinces, and will not be subject to prohibitions or self-isolation requirements in each province. The restrictions set out below will continue to apply to individuals who are not residents of Atlantic Canada. In particular, individuals who are not residents of Atlantic Canada will continue to be subject to self-isolation requirements in the Maritime Provinces, and will continue to be subject to the prohibitions in place on travel to Newfoundland and Labrador set out below. All other local public health directives in each jurisdiction must be adhered to by any travelers.
In response to the growing COVID-19 global pandemic, Nova Scotia first enacted its state of emergency on March 22nd, 2020, under the authority of section 12(1) of the province’s Emergency Management Act (the “EMA”). The state of emergency has since been extended until noon on September 6, 2020. Pursuant to section 14 of the EMA, by enacting a state of emergency, the province is permitted to control or prohibit travel within Nova Scotia.
On March 23, 2020, the province utilized this power to tighten all entry points to the province (land, sea and air). In keeping with these restrictions, all of Nova Scotia’s borders are being closely monitored and managed. Checkpoints at every major point of entry to the province have been set up. Those entering Nova Scotia from any entry point will be informed of the mandatory self-isolation requirements (detailed below) and will be asked about their plan to self-isolate beginning on the first day they enter the province. Government officials will also be calling individuals to ensure they are self-isolating as required.
Nova Scotia’s provincial government, under the authority of section 32 of the province’s Health Protection Act (the “HPA”), is requiring anyone entering Nova Scotia from out of province to self-isolate for 14 days. At this point, Nova Scotia’s provincial Conservation Officers questioning and screening travelers entering Nova Scotia through its shared land border with New Brunswick have not been granted the power to turn people away; however, police in the province are authorized to enforce orders under the HPA, including those relating to self-isolation and social distancing practices.
All post-secondary students travelling into Nova Scotia from outside of Atlantic Canada will need to self-isolate for 14 days upon arrival in Nova Scotia. Once students are in the province they are required to complete a digital check-in on each day of their isolation period. Students arriving on or after August 20, 2020 must have three COVID-19 tests while they are self-isolating. Students must continue to isolate even if their test results are negative.
Despite the above restrictions, the province has exempted a number of people (on the condition that they are healthy) from the self-isolation requirement upon entering the province. Those exempted include the following:
• Atlantic Canadian residents who travel within Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador (Atlantic travel bubble);
• people from outside Atlantic Canada who have already self-isolated for 14 days in another Atlantic Canadian province before they enter Nova Scotia;
• people visiting Nova Scotia to facilitate child sharing between parents under a joint custody order or agreement if both the children and the person bringing them don’t have symptoms of COVID-19;
• people visiting Nova Scotia for essential health services, plus one support person travelling with them;
• workers who are essential to the movement of people and goods, and who must enter Nova Scotia as part of their work requirements (not for personal reasons or other types of work);
• healthy trade and transportation workers who are employed in the movement of goods or people across the Nova Scotia border, including truck drivers, crew, maintenance and operational workers on any plane, train or food production plants;
• Canadian Armed Forces and Canadian Defence Team personnel, Coast Guard, Royal Canadian Mounted Police (RCMP), Canadian Border Services Agency and Canadian Security Intelligence Service;
• first responders, including police, fire and Emergency Health Services (EHS) paramedic workers; and
• individuals who have formally requested and have been approved for an exemption from the self-isolation requirements for “compassionate purposes”.
Apart from those governed by the mandated exemptions, individuals intending to travel to the province for business-related purposes should be prepared to self-isolate for 14 days upon arrival. Finally, though Nova Scotia has announced that COVID-19 related restrictions within the province will be eased over time, the province has not indicated when the above travel restrictions will be relaxed.
Since March 19, 2020 the New Brunswick government has issued a series of mandatory orders under New Brunswick’s Emergency Measures Act in response to the public health threat posed by COVID-19, which include restrictions on interprovincial travel. In particular, the New Brunswick government has imposed the following restrictions:
The New Brunswick government intends to lift its state of emergency restrictions, including travel limitations, in phases. On May 22, 2020 New Brunswick entered phase 3 of a 4-phase recovery plan, with additional restrictions lifted on June 5, 2020. A resurgence of COVID-19 has arisen in Zone 5 of the Province (in the City of Campbellton and surrounding region) which has now joined the rest of the province in phase 3 of the recovery plan, and the Province now no longer recommends against travel to this region. Under the 3rd phase, strict border controls continue, including the requirement to self-isolate upon entry into New Brunswick. The government has indicated that it intends to maintain some form of interprovincial border controls until a vaccine or other effective treatment for COVID-19 becomes available. In the meantime there have been no court challenges to these travel restrictions, though the Canadian Constitution Foundation has publicly announced that it is looking for a test case to challenge their constitutional validity.
For the time being, individuals coming to New Brunswick for work purposes should be prepared to answer peace officers’ questions upon their arrival and to explain why their travel to New Brunswick is necessary. Businesses should also anticipate that any employee traveling into New Brunswick for work will likely be required to self-isolate for 14 days upon entry. For more information about New Brunswick’s travel restrictions, exceptions, and recovery plan, see: https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/recovery.html
On March 16, 2020, a state of public health emergency was declared in the province of Prince Edward Island due to COVID-19. As a result, for the time being, travel restrictions into the province remain in place.
A Travel Restrictions Order, effective as of June 29, 2020, outlines those persons who are permitted travel into the province. Those persons include, for example, residents of Prince Edward Island, commercial vehicle drivers, and persons travelling to provide essential services in the province (i.e. services that, if interrupted, would endanger life, health or personal safety).
Screening measures remain in place at all entry points to the province including the Charlottetown Airport, Confederation Bridge, and PEI-Isle de la Madeline Ferry, and Peace Officers are authorized to turn away any person who attempts to enter the province in contravention of the Travel Restrictions Order.
Persons travelling to Prince Edward Island to provide essential services will require a letter of approval issued in advance by a public health official, and every person who travels into the province must comply with any self-isolation requirements in the COVID-19 Prevention and Self-Isolation Order. Generally speaking, unless exempted from self-isolation, persons travelling into Prince Edward Island are subject to mandatory self-isolation for 14 days.
A Self-Isolation Exemption Order, dated June 26, 2020, provides some exemptions from mandatory self-isolation for certain classes of persons. Those exemptions include health care workers, in some circumstances, and asymptomatic essential workers. In the case of asymptomatic essential workers, they are required to self-isolate for 14 days or for the duration of their stay in the Province (if 14 days or less) other than when they are performing work duties.
The Self-Isolation Exemption Order also permits those residents of Prince Edward Island who are asymptomatic essential workers and who travel frequently for work, either within Canada or the United states, to be exempt from self-isolation if they undergo testing for COVID-19 immediately upon entry into the Province, self-isolate until they receive a negative test, and undergo further testing seven days later.
Presently, PEI’s Travel Restrictions Order is in place until July 3, 2020. We anticipate it to be renewed in some form after that time to reflect the newly announced Atlantic Bubble. More information on Prince Edward Island’s travel restrictions can be found here.
As of May 4, 2020, pursuit to a Special Measures Order of the Chief Medical Officer (“CMO”) for Newfoundland and Labrador, restrictions were imposed on who could travel to the province. These restrictions have been modified a number of times; as of 9 September, the only individuals permitted to enter the province are:
• Residents of Newfoundland and Labrador
• Individuals owning a home in Newfoundland and Labrador
• Asymptomatic Workers who are subject to specific travel exemptions; and
• Those permitted by the CMO to enter Newfoundland and Labrador due to extenuating circumstances.
This restriction is in addition to the requirement for anyone travelling to the province to self-isolate for 14 days, which has been in place since April 29, 2020. Details respecting the travel restrictions can be found here.
Despite the province’s 5-level alert system detailing the re-opening of businesses and the relaxation of social activities, the timeframe for easing these travel restrictions is currently unknown. According to the Special Measures Order, however, the CMO is required to review the Order at least once every five days.
It is important to note that a failure to comply with these restrictions is an offence, punishable on summary conviction, pursuant to section 56 of the Public Health Protection and Promotion Act.
Residents of Newfoundland and Labrador
The provincial government has specified that a resident of Newfoundland and Labrador is someone who is either lawfully entitled to be or remain in Canada and makes his or her home in the province; or ordinarily resident in the province. For greater clarity, the government has stated that tourists or visitors are not included in this definition.
Upon travelling to Newfoundland and Labrador, the individual would simply have to prove residence by showing a piece of government issued photo identification, or, in the absence of photo identification, a valid Newfoundland and Labrador MCP card, plus one of the following documents: valid MCP card (if also presenting photo identification); a valid Newfoundland and Labrador motor vehicle registration certificate; a 2018 or 2019 Canada Revenue Agency income tax return identifying Newfoundland and Labrador as their Province of residency; or a bank/credit card statement with a Newfoundland and Labrador address. Unless exempted under the Updated Exemption Order, any person travelling to Newfoundland and Labrador is required to self-isolate for 14 days upon arrival.
Individuals Owning a Home in Newfoundland and Labrador
Beginning August 31, 2020, people living outside of Atlantic Canada in another Canadian province of territory who own a home in Newfoundland and Labrador are allowed to enter the province. These individuals, however, will still be required to apply for a travel exemption through Public Health prior to travelling to NL. To accompany the application, homeowners are required to provide proof of ownership, such as a mortgage document, property tax bill, home insurance document or a utility bill for the property. Upon entering the province, homeowners must complete the 14-day self-isolation period.
Asymptomatic Workers
The Self-Isolation Exemption Order made on May 29, 2020, identifies asymptomatic workers in a number of areas as being subject to modified 14-day self-isolation requirements (as well as being permitted to travel to Newfoundland and Labrador). These include “essential to the movement of goods and people, protection of the food supply chain” and those who are “essential to preserving life, delivering patient care and life-saving service.” These workers include those working in trade, transportation, fishery, mining, agriculture, hydro-electric and oil and gas sectors, as well as those working as essential health care workers. A complete list of the exemptions can be found here.
As of September 4, these rules have been modified for residents of the province who travel to work elsewhere in Canada on a rotational basis. These individuals may now be eligible to self-isolate for only 7 days, as opposed to 14 days, if they receive a negative COVID-19 test between days five and seven of their self-isolation. Details about this exemption can be found here.
Individuals with Extenuating Circumstances
Lastly, the provincial government is permitting individuals to enter the province where there are extenuating circumstances. The government has provided the following examples of what may be considered “extenuating circumstances”:
• Travel due to medical issues (including providing care to ill family members)
• Relocation or extended stay in Newfoundland and Labrador (i.e. For work or retirement, job loss, short-term work or education, finishing an out of province school term)
• Children returning to Newfoundland and Labrador to live with other parent/guardian
• Companies in other provinces that have to bring supplies, vehicles, etc. to Newfoundland and Labrador but are not essential services (Employees will need to either leave immediately or self-isolate for 14 days).
For those with extenuating circumstances as exemplified above, you would need to fill out the Travel Restrictions Exemption Request Form, which can be found here. It is important to note, however, that such applications are considered by the CMO on a case-by-case basis, and approval is not guaranteed. If an individual is approved, the government has made clear that individuals are still required to self-isolate for 14 days upon arrival, unless they are exempted by the Updated Exemption Order. Where an exemption request is not approved, individuals may request, within 7 days of the Order, that the CMO reconsider her decision.
With these restrictions in place, it would be prudent for businesses to proactively prepare the necessary documentation so that if an exemption request form is required, they are able to submit their request promptly. Moreover, businesses should also consider the impact these restrictions may have on non-resident employees or prospective employees who are relocating to Newfoundland and Labrador.
These travel restrictions have been attracting criticism and challenge. Much of the commentary has been to question the constitutionality either of the provisions or their enforcement mechanisms, in the context of the Charter or Rights and Freedoms. In New Brunswick, the Canadian Constitution Foundation has publicly announced that it is looking for a test case to challenge the constitutional validity of the New Brunswick provisions. In Newfoundland and Labrador, cases have been launched to challenge the constitutional validity of the province’s travel restrictions upon the denial of entry of a woman originally from the province, who was denied entry into the province following her mother’s death. Further, the provincial branch of the Canadian Bar Association has expressed concerns about the constitutionality of enforcement measures recently passed on an expedited basis through the Newfoundland and Labrador legislature. There have not yet been hearings or decisions in respect of these challenges, and in the meantime there is little indication of action by the provincial government to modify the legislation or powers being exerted in response to these challenges. As a result, for the foreseeable future the restrictions that have been put in place would be expected to continue.
In the rapidly-developing context of these restrictions, any business travel within or to the Atlantic Canada region should be re-evaluated. In all jurisdictions, an individual would have to assume they would be subject to a 14 day self-isolation regime, unless they qualify for exceptions. However many will find they simply cannot enter the province in question, due to the prohibitions in place, and may be turned away prior to or at arrival. Checking ahead with the relevant authorities prior to starting any such travel is highly recommended.
If you have any questions about these travel restrictions, or any other questions about how COVID-19 restrictions may affect your business activities in Atlantic Canada, do not hesitate to contact the authors of this article or your local office of Cox & Palmer.
The recent arbitration decision of Toronto District School Board and CUPE, Local 4400 (Re: PR734 Vaccine Procedure) (the “Decision”) considers the reasonableness of the Toronto District School Board’s (the “TDSB”) COVID-19 vaccination policy while taking into consideration the Omicron variant. It also addresses the question of whether section 7 of the Canadian Charter of Rights […]
read moreThe pandemic continues to wreak havoc on many industries. Whether it is supply chain issues, employee absences, or rental disputes, those relationships are all governed by contracts. Halifax litigation lawyer, John Boyle outlines recent court decisions and how to assess your own contracts.
read moreIn Nova Scotia, generally a person has two years from the date a claim is discovered to begin an action. Those who wait to achieve certainty regarding their claim may find the two year period has already elapsed. In a recent Supreme Court of Canada case the Province of New Brunswick brought a claim against […]
read more
