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Does my Child Have to Wear a Mask to School?

By: Grant M. Driedger and Paul F. Reimer

Covid-19 has upended every aspect of our lives, not least students having to wear masks in school. Some people have wondered what the law is on the subject – can the government require that children wear masks in school?

Provincial Policy on Mask Wearing

On September 4, 2020, Manitoba Education published its “Guidance for Mask Use at School” which states that “non-medical masks are required in schools for students in Grades 4 to 12, as well as for staff and visitors, when physical distancing of two metres is not possible.” In addition, contrary to previous directives, the September 4 “Guidance” also requires that masks be worn by all students while on a school bus. While in school, however, students in Grades 3 and under are not required to wear a mask.

On the question of “[w]ho should not wear a mask?” the “Guidance” provides:

Children who cannot wear a mask properly, as described above, should not wear one. However, this can depend on the situation and on how long the mask is worn….

In addition, non-medical masks should not be worn by anyone who

  • is unable to remove the mask without assistance (e.g., due to age, ability, or developmental status)
  • is actively having breathing difficulties
  • is under two years of age

In general, most people with underlying medical conditions can safely wear a mask…

As stated in the September 4 “Guidance”, the Province will not require a note from a health-care provider in order to exempt a child from wearing a mask due to a medical condition. However, a written notification to the school stating the child’s limitation is required by the Province. On September 18, Manitoba Education released its “Further Guidance on Masking Wearing Limitations and School Accommodations”. The “Further Guidance” restated that “[a] medical note from a health care provider…is not required by Public Health or Manitoba Education.”   However, the “Further Guidance” goes on to provide that “[a]t the school division or independent school’s discretion, the division or school may request a note be provided by a parent/guardian/caregiver from a health care provider.”

Reasons for Exemption from Wearing a Mask

The September 18 “Further Guidance” also enacted an exhaustive list of reasons for exemptions to wearing a mask, enumerate nine such exempting circumstances:

School divisions shall only grant exceptions to mandated mask wearing for the following specified exceptional circumstances [emphasis added]:

  • children under the age of two years
  • children under the age of five years, either chronologically or developmentally, who refuse to wear a face covering and cannot be persuaded to do so by their caregiver
  • people, especially children, with severe sensory processing disorders
  • people with facial deformities that are incompatible with masking
  • people with post-traumatic stress disorder (PTSD) who are triggered by a face covering
  • people with extreme agoraphobia/asphyxia phobia (which is long-standing and pre-dating COVID-19)
  • people with a cognitive impairment, intellectual deficiency, or autism spectrum disorder for who wearing a face covering will cause severe distress or disorganization
  • people with a medical condition unrelated to COVID-19, including breathing or cognitive difficulties or a disability, which prevents them from safely wearing a mask
  • people who are unable to apply or remove a mask without help

The “Further Guidance” goes on to state: “If there are limitations to a child’s ability to wear a mask…the parent/guardian/caregiver must provide written notification to the child’s school, specifying the child’s specific limitation with wearing a mask from the list above.”

Court Challenge

It did not take long for this matter to be challenged in court.

On September 24, 2020, the Manitoba Court of Queen’s Bench rendered a decision for an interlocutory motion made in McKenzie v Division Scolaire Franco-Manitobaine. The applicant brought a motion for an interim injunction requiring the Respondent, Division Scolaire Franco-Manitobaine (“DSFM”), to allow her child to attend school without wearing a mask.

The applicant had notified the school division that her children were unable to wear masks for medical reasons, but did not specify the medical reasons, stating they were “private in nature”. The school denied an exemption for her children, stating that the school would not allow an exemption unless the school was informed of her children’s specific medical condition. The applicant then provided the school with a doctor’s note which stated that her children were unable to wear masks, again for unspecified “medical reasons”. The school division again refused to give an exemption, and the parent opted to keep her children home from school. The applicant argued that the DSFM acted arbitrarily in refusing an exemption.

Justice Chartier released his decision pertaining to the motion for an interim injunction on September 24, 2020. Justice Chartier dismissed McKenzie’s motion, noting that the RJR-MacDonald test for granting interlocutory injunctions was not met.

On the question of whether there was a serious issue to be tried, Justice Chartier found this prong of the RJR-MacDonald test to be met. He found that the question of whether a reasonable accommodation was required under The Human Rights Code had been engaged. However, he noted that “[r]egarding reasonable accommodation, there is an onus on the person asking for that accommodation to provide sufficient information, both to establish whether an accommodation is required and a basis to implement and facilitate such accommodation.” Justice Chartier also noted that, under the new September 18 “Further Guidance”, “school divisions may request such medical notes.” Justice Chartier noted that the onus would be on the parent to provide sufficient evidence of a disability requiring reasonable accommodation in order to allow the school to fashion an appropriate reasonable accommodation. Although Justice Chartier found that “nearly all of the arguments presented by the applicant lacks merit, she has, in my view, raised a serious issue to be tried…”

On the question of irreparable harm, however, Justice Chartier noted that the Applicant did not substantiate the “medical condition” requiring an exemption for her children, making it difficult to find “irreparable harm” should the injunction be denied.

Finally, on the issue of the balance of convenience, Justice Chartier commented:

I agree with counsel for the DSMF’s submission that the common good and the public interest is an extremely important component in assessing the balance of convenience in this case.

I am satisfied and the record demonstrates that the current pandemic has introduced an increased level of risk for students and staff at school…

I am satisfied that the COVID-19 policies in relation to masks in the schools are required for the safe operation of the schools and while the policy acknowledges that the knowledge of the wearing of non-medical masks is evolving, the wearing of masks can play a role in reducing the transmission of COVID-19.

…I do not agree that in the circumstances the DSFM has acted arbitrarily towards the applicant or her children. They are charged with the important responsibility along with the other civil authorities to ensure the safety of children in the schools and should be accorded deference by the courts [emphasis added]

Justice Chartier therefore dismissed the motion for an interlocutory injunction.

 Conclusion

The current state of affairs is clear: the Province has issued a directive that requires masks. The first attempt at a court challenge did not succeed. While it is possible that another court challenge that was not seeking an interim injunction or had a different set of facts may succeed, the current state of the law has upheld the Province’s authority to require student to wear masks.

Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.

 
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