Page - 112 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE112 patients’ movements in this way, health officials have been able to notify individuals who had crossed paths with the virus.23 In Canada, the federal government could utilize section 8(1) of the Emergencies  Act  (power over use and disposal of “property”) to access data held by telecommunica- tions companies. There are obvious privacy concerns here as the Personal Information Protection and Electronic Documents Act (PIPEDA) bars com- mercial entities from sharing personal information without consent.24 To navigate these restrictions, new bespoke legislation25 is likely needed that specifically, and temporarily, circumvents PIPEDA for contact tracing. Scenario 3: Can the Emergencies Act Support Improved Protections in Long-term Care Homes? At the time of writing this chapter, most COVID-19 deaths in Canada have occurred in long-term care homes. Provincial responses—par- ticularly in Quebec and Ontario—have been too little, too late. For example, the Ontario government only recently (April 10, 2020) issued directives that all staff and visitors must wear surgical masks.26 An addendum notes that, pursuant to the Retirement Homes Act, “retirement homes must take all reasonable steps to follow the required precautions and procedures outlined in this directive” (emphasis added). Moreover, within Ontario, we see that some municipalities have taken more extensive steps to control outbreaks in long-term care homes, raising the question of why this has not become a pro- vincial or Canadian standard.27 In response to devastating accounts 23. Max Fisher & Choe Sang-Hun, “How South Korea Flattened the Curve” New York Times (23 March 2020), online: <https://www.nytimes.com/2020/03/23/ world/asia/coronavirus-south-korea-flatten-curve.html>. 24. PIPEDA contains some provisions allowing for disclosure without consent. For example, s 3(e) allows non-consensual disclosure in emergencies that impact “the life, health, or security of an individual.” On our understanding, this provi- sion is intended to protect specific individuals, and not to be used for collective, public health purposes. For a discussion of privacy concerns, both ethical and legal, see Teresa Scassa, Jason Millar & Kelly Bronson, this volume, Chapter C-2. 25. Passed pursuant to the peace, order, and good government power, for a critique see Carissima Mathen, this volume, Chapter A-7. 26. Ontario Ministry of Health and Long-Term Care, “Directive #5 for Hospitals within the Meaning of the Public Hospitals Act and Long-Term Care Homes within the Meaning of the Long-Term  Care  Homes  Act, 2007”, online (pdf): Ontario Retirement Communities Association <https://www.orcaretirement.com/wp-con- tent/uploads/CMOH-Directive-5-Revised-2020-04-10.pdf>. 27. Karen Howlett, “With an Early Focus on Seniors’ Residences, Kingston Has so far Avoided the Brunt of COVID-19”, The  Globe  and  Mail  (28 April 2020), online: