Although more than 80% of eligible Canadian citizens are now fully vaccinated against COVID-19, there is still a significant portion of the population who remain hesitant to receive the COVID-19 vaccine. Many individuals who are opposed or hesitant to become vaccinated have raised concerns about the legality of both policies enacted by businesses requiring employees to become vaccinated and mandates enacted by the federal and provincial governments requiring proof of vaccination for certain jobs and recreational activities. While it has become common for those who oppose vaccine requirements and mandates to argue that such policies violate their rights under the Canadian Rights and Freedom (the “Charter”), it is important to distinguish between actions taken by private employers and those taken by governments and their agents.
Tanya Walker discussed this topic recently on the national television station, Global TV. The link to view that interview is here.
Every Canadian citizen is protected by the Charter. The Charter provides Canadians with a number of rights and freedoms, including the freedom of conscience and religion, thought, belief, opinion and expression, and the right to life, liberty and security of the person. However, there are limits to the extent to which the Charter will protect these rights. For example, section 1 of the Charter provides an exception, which explains that the rights and freedoms set out in the Charter are guaranteed “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
The Charter Does Not Govern Private Businesses
While it is certainly possible for private businesses to violate the rights of employees or patrons, the Charter only applies to governments, their laws, and the acts of their agents. As such, employees of private businesses who believe their rights have been violated by an employer’s requirement that its employees be vaccinated or patrons of a private business who are refused service because of their vaccination status may not sue that business on Charter grounds. However, if a business takes such actions in order to comply with a law or mandate enacted by a government, affected individuals may be able to sue the government claiming that the law or mandate violates their Charter rights.
Private Businesses Must Comply with Human Rights Laws
In most cases, the recourse for someone who feels their rights have been violated by a private business would be to bring a claim under federal or provincial human rights legislation, such as the Ontario Human Rights Code. Human rights laws protect people from being discriminated against on a number of enumerated grounds, such as disability, race or ethnicity, gender, religion or creed, and age. Many rights protected under human rights laws are the same or similar to the rights protected by the Charter, but the difference is that human rights laws protect people from having these rights violated by private actors, while the Charter only protects them from having their rights violated by governmental actors.
Potential Liability to Employers
In the employment sphere, employers have the duty to make accommodations for employees with disabilities. As such, mandatory vaccination policies must include exceptions for employees who may not be able to receive the COVID-19 vaccine due to pre-existing medical conditions, which must be evidenced with a doctors note. Accommodation’s employers may be expected to make for such employees might include permitting the employee to work from home or in a role where they will not have physical interaction with others, or allowing such employees to be present in the workplace with a requirement that they receive regular negative COVID-19 tests and follow all other measure intended to prevent the spread of the virus.
Employers who terminate an employee with valid human rights reasons for not getting vaccinated, without making all reasonable attempts to accommodate the employee’s needs up to the point that it would cause undue hardship upon the employer, may be liable for human rights damages in addition to damages for wrongful dismissal. Even if an employee does not have valid human rights reasons for not getting vaccinated, an employer may still be liable, in some cases, for wrongful dismissal where it terminates such an employee without providing certain termination entitlements such as notice or severance pay.
If an employer has a clear policy stating that vaccination is a mandatory condition of employment and the employee refuses to comply with this policy, this could be seen under statutory law as wilful misconduct or disobedience on the employee’s part, disentitling the employee to such termination benefits. However, this may not be considered cause for dismissal under the common law, which assesses the context and proportionality of the situation when determining whether cause exists to disentitle the employee to such benefits. For example, if an employee works entirely from home and has no physical interaction with colleagues or the public in the course of employment, the employee’s refusal to become vaccinated may not amount to cause for dismissal under the common law, given the context. It is worth noting that an employer in such a case would still have the right to terminate the employee; the employer would just be required to provide the employee with notice or other entitlements upon termination.
Potential Charter Challenges of Government Action
On October 6, 2021 the Federal government confirmed that proof of vaccination will be required by the end of October for all employees in Canada’s federally regulated workplaces. Provincial and municipal governments across the country have enacted similar mandates for their own employees, as well as for certain industries such as healthcare work. There have also been mandates issued requiring that individuals provide proof of vaccination in order to be admitted to certain public spaces or recreational events.
Charter Challenges in the Employment Context
If someone were to challenge the vaccination mandates under the Charter, it does not seem that they would be successful, in most cases. For example, if an employee works in an industry that the government has mandated individuals must be vaccinated in order to work in, such an employee would not likely be successful in a Charter challenge that argues their rights have been infringed because they will lose their job if they do not become vaccinated. Such employees may argue that a mandatory vaccination requirement amounts to forced medical treatment, which violates their right to life, liberty and security of the person, under Section 7 of the Charter.
While individuals are protected against forced medical treatment by the Charter, medical treatment will only be considered forced if the government’s mandate offends fundamental justice by providing an individual with no reasonable choice but to submit to the treatment. In this example, such an employee does have a reasonable choice if they do not wish to get vaccinated: they may choose to work in a different industry. The right to employment in a certain profession is considered an economic right, which is not protected by the Charter. It is unlikely that such mandates would be considered to offend fundamental justice, as they seek to further a legitimate governmental interest – protecting the health and safety of the general public by reducing transmission rates – in a manner that is not arbitrary.
If an individual argues that a vaccination mandate violates their right to freedom of religion, this individual will be expected to demonstrate that vaccination is contrary to the beliefs of his or her religion and that the individual actively practices this specific religion. This may be done by obtaining a sworn statement from a religious leader explaining the religion’s stance on vaccinations and describing the extent to which the individual is involved in the religious community. However, the government would still have an argument that the mandate does not prevent such an individual from practicing the religion; it merely prevents them from working in a specific profession which, again, is an economic right not protected by the Charter.
Charter Challenges Related to Restrictions on Public Activity
There has also been a great deal of controversy surrounding government mandates that restrict the ability of unvaccinated individuals from entering certain public spaces or participating in certain recreational activities. For example, governments at provincial or municipal levels have issued mandates requiring individuals to provide proof of vaccination in order to gain entrance to restaurants, bars, gyms, sporting arenas, and other public venues. Individuals who challenge these mandates on Charter grounds are even more unlikely to succeed than those who challenge employment-related vaccination requirements.
While individuals may not be excluded from certain activities for reasons that are discriminatory on human-rights grounds, the Charter does not provide individuals with any fundamental right to participate in specific public activities, particularly those of a recreational nature. Vaccination mandates of this sort would not be considered forced medical treatment, as these mandates serve a legitimate governmental purpose and provide individuals with reasonable alternative choices. If an individual wishes to go out to a restaurant for dinner or attend an NHL game, they have the options of getting vaccinated or eating and watching the game at home.
Legal Precedent will be Set
While there is still some uncertainty as to how the legality of vaccine mandates and mandatory vaccine policies will be interpreted, it is only a matter of time before the Courts, labour tribunals, and human rights tribunals release decisions that establish binding precedent related to these issues. It is likely that a number of Charter challenges to such policies and mandates have already been commenced in the Courts. The Ontario Human Rights Commission has already been overwhelmed with a deluge of claims being brought alleging that these policies and mandates have a discriminatory effect.
The abundance of human rights claims initiated has prompted the Ontario Human Rights Commission (the “Commission”) to release a statement on the matter. In its statement, the Commission confirmed that it respects a person’s right to choose with respect to receiving the vaccination; however, persons do not have a right to accommodation based on personal preference or singular beliefs. Even if the vaccination conflicts with a person’s religious beliefs, the duty to accommodate can be limited if it would compromise the health and safety of others to the point of undue hardship.
We will continue to monitor how the Courts and tribunals rule on the issues discussed in this article and expect to provide updates as precedent-setting decisions are released.
Please note that this article is intended for information purposes only. It is not intended to provide legal advice. If you have any specific questions, please contact a lawyer.