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City's authority to mandate masks unclear

While other Ontario municipalities press ahead with mandatory mask rules, Thunder Bay says it doesn't have the power to do the same - turning instead to its medical officer of health
It remains unclear whether Ontario cities have the power to mandate mask wearing, though several are passing such rules regardless. (Photo courtesy UBC)

THUNDER BAY – While some Ontario municipalities press ahead with mandatory mask bylaws, the City of Thunder Bay says it’s powerless to do the same, citing internal legal advice. It’s one example of the jurisdictional uncertainty that has resulted in a patchwork of rules across the province.

City lawyers have advised Thunder Bay can't mandate the wearing of masks in public indoor spaces, such as businesses and city buses, said Mayor Bill Mauro. Instead, an order would have to come from the district's medical officer of health or the province itself.

However, Mauro said it’s a murky legal question that has yet to be tested. That may soon change, as numerous Ontario municipalities go ahead with mandatory mask bylaws despite the uncertainty.

“It seems as though the legislation is silent on this – it doesn’t say you can, it doesn’t say you can’t,” he said. “I think that might be why some municipalities are moving forward, and they’ll see if it’s challenged.”

The mayor is turning instead to the Thunder Bay district's medical officer of health, Dr. Janet DeMille, asking her to consider issuing a public health order to make masks mandatory in indoor public spaces.

It’s a step DeMille is hesitant to take, saying she’d prefer to see the Ford government set consistent rules for the entire province – a possibility she considered imminent, despite previous denials from Ford.

"I believe we will be seeing that across the province in very short order," DeMille said earlier this week.

Health units from Ottawa to Sudbury have issued mandatory mask orders that typically apply in public enclosed spaces including transit. In Ottawa, the city is still looking to pass a bylaw in order to set rules for enforcement.

Notwithstanding her reticence on making the practice mandatory, DeMille’s advice for individuals is clear: if you’re able to, wear a mask in enclosed public spaces.

The province has been silent on the question of whether cities have the authority to make masks mandatory. Responding to a Tbnewswatch inquiry, a spokesperson for Ontario’s ministry of municipal affairs did not offer a categorical answer.

“The Municipal Act gives municipalities broad permissive powers to pass by-laws and govern within their jurisdiction,” they said. “We trust that municipalities are working with their local health unit and acting to protect people from COVID-19.”

City councillor Kristen Oliver echoed the call for greater direction from the province while speaking with Tbnewswatch earlier this week. But in the absence of provincial leadership, she believes local leaders have a duty to act.

“I do think there should be some leadership coming from the provincial government around this,” she said. “I think there’s a little mixed messaging happening – but at the same time, I think the community is looking to our leadership municipally to make that decision and to move forward.”

Thunder Bay’s city council will consider Mauro’s motion asking the public health unit to consider a mandatory mask order on July 20.