Federal Court Considers OIC

  • November 24, 2020
  • Hart Kaminker, principal of Kaminker & Associates

Since the outbreak of the COVID-19 pandemic the Government of Canada has issued Orders in Council (OICs) concerning the movement of people across the border. Inevitably these OICs are being subject to litigation in the Federal Court.

Recently, in Monsanto v. Minister of Health and MPSEP, 2020 FC 1053 the Federal Court considered the OIC as it pertains to the mandatory 14-day quarantine on entering Canada. The decision of Justice Little provides a glimpse into how the Court will weigh the OICs  against the individual interests of those entering Canada.

The case involved an employee with Rebel News who attended a U.S. election event in Michigan from November 1 to November 2, 2020. On return, the employee advised the Border Services Offer that he would not be subject to quarantine, relying on paragraph 6 (n) of the OIC which says that the quarantine provision does not apply to a person who enters Canada to return to their habitual place of residence in Canada after carrying out an everyday function that, due to geographical constraints, necessarily involves entering the United States. It was the employee’s position that his job necessarily required him to enter the United States and that he was returning to his place of habitual residence. The Officers at the port of entry at Sarnia did not agree and advised the employee that he had to quarantine for 14 days.