Introduction

On January 4, 2021, we previously reported that virtually all international passengers flying to Canada from another country would be required to provide evidence of a negative COVID-19 test prior to boarding (the Testing Requirement). However, only limited guidance regarding the Testing Requirement was available at that time. 

The Testing Requirement became effective at 11:59:59 pm Eastern Standard Time, on January 6, 2021. In addition, further details regarding the Testing Requirement now appear in the following orders:

1. The Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 18 (Interim Order No. 18). Interim Order No. 18 was issued by Transport Canada, pursuant to Subsection 6.41(1) of the Aeronautics Act.
2. The Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Minimizing Risk Order). The Minimizing Risk Order was implemented by Order-in-Council, pursuant to Section 58 of the Quarantine Act.

Overview of the testing requirement

It is important to again clarify that the Testing Requirement does not replace Canada’s existing COVID-19 travel restrictions or its 14-day self-quarantine requirement, both of which were previously implemented pursuant to the Quarantine Act. Rather, it functions as an additional layer of protection intended to support the preventative measures that are currently in place.

As Interim Order No. 18 was issued pursuant to the Aeronautics Act, it applies only to air travel. Interim Order No. 18 requires every person boarding a flight to Canada to provide (to the private operator or air carrier operating the flight) evidence that they have received a negative test result for a COVID-19 molecular test that was performed on a specimen collected no more than 72 hours before the aircraft’s initial scheduled departure time. 

For the most part, the Minimizing Risk Order mirrors the Test Requirement described in Interim Order No. 18. However, it also requires travellers to retain evidence of their negative COVID-19 molecular test for 14 days after their arrival in Canada. The Minimizing Risk Order also recognizes additional exemptions from the Testing Requirement, which are described in greater detail below.

Although the Minimizing Risk Order was implemented pursuant to the Quarantine Act, rather than the Aeronautics Act, it still applies the Testing Requirement to air travel only. In other words, travellers driving across the US-Canada border do not need to satisfy the Testing Requirement, at least for now.

Exemptions from the Testing Requirement

At the present time, Interim Order No. 18 exempts the following persons from the Testing Requirement:

1. Persons who are exempted under an order made under Section 58 of the Quarantine Act from providing evidence that they received a negative result for a COVID-19 molecular test; and
2. Persons who board an aircraft for a flight departing from Haiti, as it does not yet have molecular testing for COVID-19 generally available.

When Interim Order No. 18 first came into effect, persons boarding flights departing from St. Pierre and Miquelon were also exempted from the Testing Requirement. However, this exemption ended at 11:59:59 pm Eastern Standard Time, on January 13, 2021.

In addition, when Interim Order No. 18 first came into effect, persons boarding flights departing from certain designated countries (which are listed in Schedule 2) were permitted to present evidence of a COVID-19 molecular test that was performed on a specimen collected up to 96 hours before the aircraft’s initial scheduled departure time. However, this exemption ended at 00:01 Eastern Standard Time on January 14, 2021.

Although not specifically mentioned in Interim Order No. 18, Transport Canada’s updated announcement also refers to the following additional exemptions:

1. In order to deal with the unexpected challenges of a COVID-19 molecular testing supply shortage, from January 10, 2021 until January 18, 2021, travellers departing from Jamaica who were not able to obtain a COVID-19 test were allowed to board their flight, if they consented in advance to take a COVID-19 test at Toronto Pearson International Airport immediately upon their arrival in Canada. 
2. On an exceptional basis, from January 14, 2021 to January 21, 2021, travellers departing from Barbados, Bahamas and the Dominican Republic will be given have a test validity period of up to 96 hours prior to departure of their flight to Canada.

Most of the currently available exemptions appear in the Minimizing Risk Order, which is implemented pursuant to Section 58 of the Quarantine Act. According to the Minimizing Risk Order, the following persons are exempted from the Testing Requirement:

1. Children under the age of five;
2. A person who enters the airspace over Canada on board a conveyance while proceeding directly from one place outside Canada to another place outside Canada, if the person was continuously on board that conveyance while in Canada and the conveyance did not land while in Canada (i.e., transiting passengers);
3. A crew member as defined in the Canadian Aviation Regulations or a person who enters Canada only to become such a crew member;
4. A member of a crew as defined in the Immigration and Refugee Protection Regulations (IRPR) who is re-entering Canada after having left to participate in mandatory training in relation to the operation of a conveyance, and who is required by their employer to return to work as a member of a crew on a conveyance within the first 14 days following their return to Canada;
5. A person or any person in a class of persons who, as determined by the Chief Public Health Officer (appointed under the Public Health Agency of Canada Act), will provide an essential service, if the person complies with any conditions imposed on them by the Chief Public Health Officer to minimize the risk of introduction or spread of COVID-19 (the following classes of persons are currently exempt: (1) asymptomatic members of the Canadian Armed Forces (CAF) returning from mission essential travel, as long as they adhere to the alternative testing and oversight measures required by CAF; and (2) CAF flight crew performing mission essential travel);
6. A person permitted to work in Canada as a provider of emergency services under Paragraph 186(t) of the IRPR and who enters Canada for the purpose of providing those services;
7. An emergency service provider, including a firefighter, peace officer, or paramedic, who returns to Canada after providing emergency services in a foreign country and who is required to provide their services within the first 14 days following their return to Canada;
8. A person or any person in a class of persons whose presence in Canada, as determined by the Minister of Health, is in the national interest, if the person complies with any conditions imposed on them by that Minister to minimize the risk of introduction or spread of COVID-19;
9. An official of the Government of Canada or a foreign government, including a border services officer, immigration enforcement officer, law enforcement officer, or correctional officer, who is escorting individuals travelling to Canada or from Canada pursuant to a legal process such as the deportation, extradition or international transfer of an offender; or
10. An official of the Government of Canada, the government of a province or a foreign government, including a border services officer, immigration enforcement officer, law enforcement officer or correctional officer, who
    1. Enters Canada for the purposes of border, immigration or law enforcement, or national security activities, that support active investigations, ensure the continuity of enforcement operations or activities, or enable the transfer of information or evidence pursuant to or in support of a legal process, and
    2. Is required to provide their services within the first 14 days following their arrival in Canada.

Evidence of a suitable COVID-19 test required

Based on the Interim Order No. 18, a COVID-19 molecular test must satisfy the following requirements:

1. It must be a COVID-19 screening or diagnostic test, including a test carried out by the method of polymerase chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification (RT-LAMP); and
2. It must be carried out by an accredited laboratory.

The initial Transport Canada announcement made reference only to a PCR test but it appears as though an RT-LAMP test will also be accepted. However, the less accurate antigen test (commonly known as a “rapid test”), which tests for a piece of the coating of the COVID-19 virus, will not be acceptable. In addition, a serology test, which tests for antibodies and primarily determines whether an individual previously had COVID-19, will not be acceptable.

Travellers are strongly encouraged to have their COVID-19 molecular 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). Transport Canada’s updated announcement now states that information on reputable local COVID-19 testing facilities for certain destinations is now available at Travel.gc.ca. 

Interim Order No. 18 and the Minimizing Risk Order both require that evidence of a negative COVID-19 test include the following:

1. The person’s name and date of birth;
2. The name and physical address of the laboratory that administered the test;
3. The date that the specimen was collected and the test method used; and
4. The test results.

Obligation to notify travellers of COVID-19 test requirement

Interim Order No. 18 requires that private operators or air carriers notify every person who intends to board a flight to Canada that they may not be permitted to board if they are unable to provide evidence of a negative result for a COVID-19 test. Unless exempt, if a person is unable to comply with the Testing Requirement, they will not be permitted to board the flight.  

Travellers who are exempted from the Testing Requirement (other than pursuant to one of the exemptions described in the Minimizing Risk Order) may still be subject to additional measures if they arrive in Canada without a negative COVID-19 test result. For example, a person travelling from Haiti could be given the choice of taking a COVID-19 molecular test upon arrival or being sent to a federal quarantine facility at the point of arrival. 

False or misleading evidence of negative result for COVID-19 test

Interim Order No. 18 prohibits a person from providing evidence of a negative result for a COVID-19 test that they know to be false or misleading. As the prohibition requires knowledge of the false or misleading nature of the negative result, a penalty (discussed below) should not be incurred by a person who can demonstrate that they were unaware that the evidence was false or misleading.

If a private operator or air carrier has reason to believe that a person has provided evidence of a negative result for a COVID-19 test that is likely to be false or misleading, Interim Order No. 18 requires them to notify the Minister of Transport as soon as it is feasible to do so. Such notification must include the person’s name and contact information, as well as the date and number of the person’s flight.

Penalties for non-compliance

Private operators or air carriers, as well as individuals, are subject to monetary penalties for non-compliance with Interim Order No. 18:

1. The following contraventions will subject a private operator or air carrier to a monetary penalty:
   1. Failing to notify a person who intends to board a flight to Canada that they may not be permitted to board if they are unable to provide evidence of a negative result for a COVID-19 test;
   2. Failing to notify the Minister of Transport as soon as is feasible to do so if the private operator or air carrier has reason to believe that a person has provided evidence of a negative result for a COVID-19 test that is likely to be false or misleading; and
   3. Permitting a person to board an aircraft for a flight when that person (unless exempt) has not provided evidence of a negative result for a qualifying COVID-19 test that was performed on a specimen collected no more than 72 hours (or if applicable, 96 hours) before the aircraft’s initial scheduled departure time.

The maximum penalty for any of the above contraventions is: (1) $5,000.00 CAD for an individual, or (2) $25,000.00 CAD for a corporation.

b. The following contraventions will also subject a passenger (or would-be passenger) to a monetary penalty:

1. Failing to provide a private operator or air carrier, prior to boarding an aircraft for a flight, with evidence that they received a negative result for a qualifying COVID-19 test, which was performed on a specimen collected no more than 72 hours before the aircraft’s initial scheduled departure time (unless exempt); and
2. Providing evidence of a negative result for a COVID-19 test that the person knows to be false or misleading.

The maximum penalty for either of the above contraventions is $5,000.00 CAD.