Toronto's mask law needs 'clarification,' puts onus on businesses to enforce it, critics say

Some business owners and experts in employment law say Toronto's mandatory mask bylaw is creating issues because it's unclear for some and puts the onus on businesses to enforce it.

The city is leaving it to business owners and operators to create a policy, post signage and ensure people are wearing masks to slow the spread of COVID-19. If they aren't doing that, they can be issued a $1,000 fine.

Right now, the city says it's concentrating on education rather than enforcement and hasn't issued any fines. But some people are taking advantage of what seems to some like a murky and somewhat confusing bylaw — for example, groups creating fake medical exemption cards and staging anti-mask protests.

"The actual understanding [of the bylaw] probably still needs more clarification," said David Howitt, the chair of the Bloor West Village BIA. He says he hasn't had any issues with customers not wearing masks, but other businesses have.

"It's tough because peoples' fuses are short, hot weather, they don't like being told what to do," said Howitt, who owns Marlborough's, a stationery and gift shop on Bloor Street West a couple of blocks east of Jane Street.

Andrew Monkhouse, a Toronto employment lawyer, says putting the onus on businesses to police customers who flout the rules can cause problems.

"Individual businesses have to make choices, which might upset some customers or some of their employees," he told CBC Toronto.

Employees are then left with a tough decision: risk breaking the bylaw and receive a fine, or deny service to someone who may have a legitimate reason for not wearing a mask. Under Toronto's bylaw, people who are exempt from wearing a mask don't need to provide proof.

Monkhouse says staff have the right to refuse service to anyone, including if they aren't wearing a mask, as long as the reason isn't based on discrimination. 

But, that can get tricky. 

The bylaw states those who are exempt from wearing a mask include children under two and people with medical, mental health or cognitive conditions, or a disability, that prevents them from wearing one. That applies to people with hearing impairments or those communicating with them. 

It also includes anyone who requires accommodation under the Ontario Human Rights Code, which Monkhouse calls a "catch all."

He says if a case were to go before the courts, then a customer would need to provide proof they have a condition that doesn't allow them to wear a mask, which he and some health experts say is rare.

"The Ontario Human Rights Code isn't about people's desires. It's about the reasonable needs of someone to keep people safe," Monkhouse said. "Unfortunately that's being used more offensively in [the case of fake exemption cards]."

City aware of fake cards, encourages businesses to be respectful

Toronto Public Health says it's aware of the fraudulent exemption cards and says it does not provide or endorse them, but does not say if there's a plan to address them.

"Proof of exemption is not required for individuals due to medical reasons as this is personal health information and it is important to protect people's privacy," the city's Associate Medical Officer of Health Dr. Vinita Dubey said in an email.

When asked if the city will provide advice to businesses on how to handle people using the cards, she said owners have received resources from the city and that it's up to them to develop their own policy for how to handle specific situations.

Dubey encourages businesses to be respectful of people who are unable to wear a mask due to health, age or other reasons. 

"We also recommend that businesses offer alternative services (e.g. online, telephone, curbside pickup) or offer off-peak hour service for those unable to or who choose not to wear a mask," she wrote.

The City of Toronto says between July 7, the day the bylaw went into effect, and Wednesday afternoon, it received 311 mask-related complaints, but issued no fines to businesses.

Dubey said during early stages of the bylaw the city is focusing on education, rather than enforcement.

Business owners say majority complying

Howitt says he's had a few customers with "quite obvious" medical exemptions enter his store without a mask and ensures they keep a distance from others while helping them make their purchases quickly.

He says while he has a right to deny people entry to his store, it's his understanding he must allow people in who say they are exempt from wearing a mask, even if he doesn't believe they have a valid reason, or if they show a fake card.

"Customers freak out because everyone has a different understanding. So, we just need time to figure this out, more communication from governments, let everything settle in."

Robert Lundy, who owns Shakey's pub on Bloor Street West near Runnymede Road, says he's only had a handful of customers complain about having to wear a mask when they go inside to use the washroom, but says a polite conversation about the importance of keeping staff and customers safe does the trick.

He says he doesn't plan on allowing anyone to enter without a mask, especially those using fake exemption cards or pretending to have a condition.

"I don't have time for those types of people," he said.

In a news conference Wednesday afternoon, Premier Doug Ford was asked about the fraudulent cards and whether there should be stronger laws in place to ensure people aren't flouting the rules.

Ford didn't comment on the province stepping in, the the use of the cards is "totally unacceptable," he said.

"Don't be a scammer and say that you can't wear a mask," Ford told reporters. 

Monkhouse also denounced the cards and said it's unfortunate the bylaw doesn't address those not wearing a mask simply because they don't want to.

"Hopefully municipal or provincial lawmakers will see this issue and be able to try to resolve it, but at present there isn't an easy solution."