Vaccine Mandates: Can Canada Pull It Off?

By  //  January 17, 2022

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Based on the Ontario government site, as of January 10, 2022, 88.4% of residents are fully vaccinated. A reason for this may be the provincial government’s vaccine mandates released on September 22, 2021. These came ahead of the national government regulations for federal employees and federally regulated industries.

These mandates require anyone entering non-essential indoor and outdoor premises to show proof of vaccination, with some exceptions. In Mississauga, for example, anyone over 12 years old must present a government-issued enhanced vaccine certificate with a QR code to enter some establishments. These include fitness or sports facility, banquet halls, restaurants (indoor), museums, theaters, and concert halls.

Ontario’s regulations also allow private businesses to impose vaccination policies on employees. The goal is to prevent CoViD-19 propagation. This is especially in the face of a new threat: the highly transmissible Omicron variant.

These regulations have raised the issue of possible infringements of the rights of Ontarians, particularly those who are vaccine-hesitant. Do Ontarians have legal standing to challenge these mandates?

The Arguments

Those who oppose the vaccine mandates often refer to Section 7 of the Canadian Charter of Rights and Freedoms, which ensures the “right to life, liberty, and security.” This is because vaccine mandates restrict unvaccinated Ontarians from going to certain areas. Other challenges cite Ontario’s Human Rights Code and the Occupational Health and Safety Act (OSHA) to prevent employers from imposing vaccine policies on employees. 

Many of these cases cite the claim of employers coercing union employees to get vaccinated to avoid unpaid leaves or termination. An excellent example of this is the United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd.

The Case Laws

In many cases, a charter argument has no basis because vaccine mandates are not forcing anyone to get the vaccination. Claims citing Section 2 or 15 of the Canadian Charter may have a better chance. This is where the mandate or employer policy infringes on the freedom of religion and expression or discriminates against a person of disability (cannot get vaccinated).

Ontario cases citing the Human Rights Code or OSHA have received a mixed reception in court. In the United Food and Ontario Power Generation v The Power Workers Union cases, the arbitrator upheld the vaccination policies of the employer as reasonable and enforceable. However, in Electrical Safety Authority v Power Workers Union, the arbitrator determined the opposite for some parts of the policy. The mediator highlighted, in particular, not giving employees a choice between antigen testing or vaccination.

The Analyses

Like most cases dealing with potential human rights violations, the legal basis of vaccine mandates in Canada hinges on what is deemed reasonable. Section 1 of the Canadian Charter states that it guarantees the rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified.”

Given the efficacy of CoViD-19 vaccinations in reducing the spread and severity of the virus, vaccine mandates that do not force anyone to get vaccinated would arguably be within the definition of reasonable limits. It would be an uphill battle for claimants to prove any breach or infringement of their rights or freedoms as individuals and employees under such circumstances.

Essentially, vaccine mandates limit the activities of the unvaccinated to protect the community at large from disease, in this case, CoViD-19. It’s up to people to decide between getting the vaccine or forgoing some activities, including employment. While that may seem like choosing between a rock and a hard place, it is still a choice.76For employees complaining about coercion in the workplace, they should know that the federal court has upheld that loss of employment due to the refusal to get vaccinated does not constitute “irreparable harm.” While this was for one case, similar claims will likely receive the same ruling.

The Verdict

Overall, it is unlikely that challenges to government vaccine mandates will succeed in arbitration or civil court. Vaccine mandates and policies address public health and safety so that proponents can justify their implementation and enforcement under most circumstances.

However, nothing is certain under the law. Similar cases may have points of variance that could tilt the balance one way or the other. Much hinges on the facts of each case and the skills of the lawyers arguing for or against a claim.

For example, some portions of a mandate may be arbitrary or grossly disproportionate, resulting in irreparable harm to specific people. If you think there has been a violation of your rights due to the Ontarian government’s vaccine mandates or your employer’s policies, you can consult lawyers in your area to find out if you have a case.

If you have loved ones living in Canada, especially in Ontario or Mississauga, who are having problems with the vaccine mandates in their area, tell them to reach out to lawyers. There is nothing wrong with ensuring that no one is violating our rights.