To mask or not to mask? Without Ontario backing, businesses face potential legal landmines

With the GTA seeing a massive surge of COVID cases, Gil Filar is glad his family restaurant on Yonge St., The Rosedale Diner, kept indoor masking and vaccine passport requirements - despite the Ford government dropping them more than a month ago.

When we first announced we'd keep the COVID requirements we received a lot of negativity, getting review-bombed by so many people, many not even in Toronto," he said. But now, so many in the community are thankful we kept it."

Last week, 100,000 new COVID-19 infections were being reported in Ontario - the highest number of daily infections since the start of the pandemic - prompting experts to warn of increased hospitalizations in the coming weeks and some to call for a return to mandatory masking in essential businesses.

On April 4, Toronto's medical officer of health, Dr. Eileen de Villa, urged residents to return to wearing masks in public indoor settings due to the rise in cases. Wearing a mask is a simple thing we can all do," she said, but doesn't believe mandates are appropriate at this time.

But many businesses in Toronto continue to demand masking.

These are not huge impositions in our lives," said Filar. If I can wear a mask for a seven-hour shift where I'm running around, it's not a big deal to ask it of customers. And the vaccine passport is a no-brainer. It doesn't make sense to lift it with the cases we're seeing," he said.

But reinstating mask mandates and vaccine passports, Filar said, is difficult to enforce after the province ended measures on March 1. It also comes with legal implications.

Businesses that bring back mask and vaccine measures face potential legal landmines if the province no longer enforces rules, said Julie Kwiecinski, director of provincial affairs for Ontario at the Canadian Federation of Independent Business.

When the rules were mandated by the province it gave businesses some protection against human rights and court challenges," she said. But if the businesses make the decision to reinstate these measures, they could be on their own when it comes to lawsuits or human rights complaints."

She said many businesses likely won't reinstate the measures without provincial backing fearing legal ramifications. And customer anger over health measures and potential delays associated with the vaccine checks, especially for restaurants, are among reasons mandates won't be reinstated. When the federation surveyed its members, she said, there was an even split among those wanting to keep or lose vaccine checks.

Businesses can also come into conflict with patrons," said employment lawyer Jon Pinkus, who added the law is still murky as there isn't any case law in this area."

But, he added, businesses can legally ask customers for proof of vaccination or masking as the province said it is up to each business to create their own rules.

Jill Barber, owner of Barbershop Patisserie on College Street, asked her three employees if they wanted to keep masks back in March. It was a unanimous yes."

The bakery is takeout only but receives high traffic in a small space. The staff also deal with customers daily.

It's my responsibility to protect my staff and one is a single parent ... we can't afford to take time off," she said. We can't afford to close."

Customers haven't been aggressive toward Barber and her team. Sometimes a gentle reminder is given if people walk in without a mask, and if they don't have one, the store provides disposable masks.

Barber and Filar stand by their choices to keep the COVID-19 requirements as Toronto wrestles with the sixth wave.

In Baldwin Village Japanese restaurant, OMAI, still requires proof of vaccination and masking indoors, as does Donatello Restaurant on Elm Street which will keep the rules in place until staff and customers feel safe.

Revue Cinema, an independent movie theatre in Roncesvalles, is requiring proof of vaccination until May 1 and recommends visitors wear masks. Mirvish Productions also has a May 1 end date for mandates.

Virginia Gallop, executive director of Cabbagetown Business Improvement Area, said throughout the pandemic businesses have felt completely on their own" when creating safe policies.

A cycling store in the area has dealt with aggressive behaviour from customers due to masking requirements, she said. Even when putting public health first, small businesses are on the front lines dealing with public hostility.

Small businesses are sitting ducks," she said. Someone might walk in, patronize them or give them a piece of their mind, and they're vulnerable because their door has to be open. They need the business."

Clarrie Feinstein is a Toronto-based staff reporter for the Star. Reach Clarrie via email: clarriefeinstein@torstar.ca