Stage 3 Reopening: What it means for Sports and Recreation (current as of July 14 at 4:00 pm)

As of July 17, 2020 most of Ontario will enter Stage 3 of its COVID-19 re-opening plan. Durham, Haldimand-Norfolk, Halton, Hamilton, Lambton, Niagara, Peel, Toronto, Windsor-Essex, and York will enter Stage 3 at a later date.

The Phase 3 Sport Framework

On July 13 the Government of Ontario released information regarding Phase 3 on its website here and here. I provided a summary on how those details related to sport and recreation. I updated this blog on July 14, 2020 in the afternoon after the Government released the text of O. Reg. 364/20 (the regulation that governs Phase 3). There are some differences between the Government's published guidelines and the text of the regulation. In the event of a discrepancy, the regulation must be followed.

I have also reproduced (at the bottom of this article) other factors that sport stakeholders needs to keep in mind in addition to the Stage 3 regulation.

Team Sports and Live Sporting Events

The original guidelines that were released on July 13 provided that prolonged and deliberate contact while playing sports will not be permitted for amateur sport. They elaborated that team sports in which body contact between players is either an integral component of the sport or commonly occurs while engaged in the sport (such as wrestling and judo) are not permitted unless the sport can be modified to prevent prolonged or deliberate physical contact. The text of the regulation is different. Section 8(1)5 provides that:

"Team sports may only be practised or played within the facility if they do not allow for physical contact between players or if they have been modified to avoid physical contact between the players."

Given this wording, sports where incidental contact may occur may need to consider modifications in order to avoid physical contact between players.

The Government informational guidelines also provided that leagues must contain no more than 50 "participants" in total for amateur sport. If participants in a league exceed 50, the league may divide into small groups of no more than 50 people. I commented yesterday that his regime is essentially establishing mini-sports circles in which games can be played. These rules will prevent large cross-province competitions among large numbers of competing teams and will limit competition for team sports to small group league play only.

I raised the question on twitter as to whether "participants" included coaches and officials. However, the regulation itself does not use the word "participants" and clarifies this restriction as follows:

6. Organized team sports that are practised or played by players in a league may only be practised or played within the facility if the league either,

i. contains no more than 50 players and does not permit its teams to play against teams outside of the league, or

ii. divides its teams into groups of 50 or fewer players and does not permit teams in different groups to play against one another or against teams outside of the league.

Spectators at all sporting events will be subject to gathering limits and physical distancing measures - with assigned seating where possible. The total number of spectators permitted are set out in the Regulations and differ for indoor and outdoor events. These spectator limits apply equally to amateur and professional sport:

4. The total number of spectators permitted to be at the facility at any one time must be limited to the number that can maintain a physical distance of at least two metres from every other person in the facility, and in any event cannot exceed,

i. 50 spectators, if the spectators will be indoors, or

ii. 100 spectators, if the spectators will be outdoors.

Some of the regulations that apply for Phase 3 for amateur sport do not apply to certain professional sports leagues (such as physical contact and the "50 player" rule, as examples) if they have submitted a return to play plan that has been approved by the Office of the Chief Medical Officer of Health. Those leagues include the CFL, MLB, MLS, NBA, NHL, NLL and CEBL.

Gathering Limits

Indoor gathering limits have been increased to 50 people and outdoor gathering limits increased to 100 people. In all cases, physical distancing of two metres is required. Everyone hosting an event must comply with the gathering limits. People at their place of work do not count towards the gathering limit - neither the guidelines published yesterday nor the regulations expressly state whether or not this includes volunteers running an event.

Gathering limits are specifically noted as applying to facilities for the use of sports and recreation and for sporting and racing events.

Facilities for Sports and Recreation

Gyms, fitness studios and community centres may re-open. Physical distancing must be retained - except if playing a team sport or as needed for personal training. The total number of people permitted in areas containing weights or exercise machines is limited to the number of people that can maintain physical distancing of at least two metres, and cannot exceed the indoor gathering limit of 50 people. The total number people permitted in classes or organized activities at any one time is limited to the number of people that can maintain physical distancing of at least two metres, and cannot exceed the indoor gathering limit of 50 people or the outdoor limit of 100. Assigned spaces are strongly recommended for organized fitness classes.

Equipment used at sports and recreation facilities must be cleaned and disinfected between users or at the end of the game. Any washrooms, locker rooms, change rooms, showers or similar amenities made available to the public must be cleaned and disinfected frequently (in Phase 2, many of these amenities remained closed). Steam rooms and saunas are not permitted to open.

It is noteworthy that the Government has put the onus on facilities that are rented by sporting groups to ensure compliance with the rules regarding amateur sport. This may result in facilities requiring more staff available to ensure compliance.

Ministry Resources

The Ministry also launched a COVID-19 reopening website for return to play. The website is currently sparse on information but does link to some of the provincial sport organization and national sport organization ("PSOs" and "NSOs") COVID-19 guidelines. Additional resources are being prepared and will be added to this website as they become available. I note that many PSOs and NSOs are missing from the links currently on the Ministry website and it may be that they have not made their COVID-19 guidelines publicly available online: https://www.mtc.gov.on.ca/en/sport/return.shtml

Municipal By-Laws and Orders by Local Health Units

In addition to provincial orders, there are regional differences that apply to sport and recreational facility use. These may remain in place during Phase 3 and are administered by the various municipal health units and municipalities.

Some municipalities have decided to keep their municipally owned sport and recreational facilities closed until certain dates. Some municipalities that have re-opened their facilities are imposing their own rules as conditions of renting the facilities that must be complied with.

Further, local health units are able to issue their own Orders under the Health Protection and Promotion Act. This has been done, for example, in a piecemeal fashion across the province mandating indoor mask use. Some of these Orders may impact sport and recreation and should be reviewed. For example, the City of Ottawa order regarding indoor mask use specifically applies to "sports facilities, sports clubs, gyms, yoga studios, dance studios and stadiums." Accordingly, if one of those facilities are opening in Ottawa during Phase 3, mask use will be required. Other health units may have similar requirements.

National and Provincial Sport Organization Return to Sport Documents

If your PSO or NSO has imposed a suspension of sport operations you must continue to comply with that suspension until it has been formally lifted. The Ministry's announcement regarding Phase 3 does not automatically lift those suspensions. The Government is effectively stating that some sports may re-open - not that they must.

Most PSO's have developed return to sport documents that are now linked to the Ministry website. These are often developed in conjunction or consultation with the applicable NSO. These return to sport documents tend to include sport-specific guidelines which must be followed by teams and athletes returning to those sports during the pandemic. These guidelines should now be reviewed in light of the Phase 3 requirements for return to sport to ensure compliance.

The guidelines being developed by NSOs and PSOs are extremely varied between sports in Ontario. Some are obtaining legal advice and medical advice prior to the implementation of their guidelines and others may not be. Again, there has not been a provincial standard for return to sport released by the Ministry and, for now, organizations operating in Ontario simply need to make sure that their guidelines comply with the various emergency orders described above.

The return to sport documents may be more restrictive than what is required by the emergency orders, municipal by-laws or local public health orders. In that case, members of the sporting association still need to comply with the guidelines or risk discipline being imposed by the applicable PSO or NSO. Further, failure by a team or association to follow the guidelines issued by a PSO or NSO could be evidence in a court proceeding for negligence arising out of COVID-19 exposure that the coach or association failed to meet the required standard of care expected in the circumstances.

The return to sport documents may also not fully comply with municipal by-laws or local public health orders given that they differ across the province. Coaches and local associations need to be mindful of the regional differences that apply so that they do not inadvertently violate a municipal by-law or public health order. In the unfortunate event that you notice that your PSO's return to sport documents are in violation of the provincial emergency orders or local guidelines, it would be wise for you to bring this to the PSO's attention. These instances should be rare but mistakes do happen in the creation of these documents - particularly as many PSO's are struggling financially due to reduced registration fees and cancelled events and may not have the resources to retain professional assistance.

I will continue to update this document as more information becomes available.

Erin Durant