On October 6, 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.
On that same day I appeared on Global News to discuss how the federally and provincially imposed vaccination mandates impact those who do not wish to receive the COVID-19 vaccine. During the segment, Dan Hill (“Mr. Hill”), an individual from New Brunswick, expressed his concern about receiving the vaccine. Due to past adverse reactions to other medications and current provincial human rights legislation, he feared his experiences may not qualify as serious enough to receive a workplace exemption.
Tanya Walker on Global News
There are two ways, both covered under The Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, for an individual to challenge loss of employment due to not receiving the vaccination. The Canadian Charter of Rights and Freedoms (the “Charter”) protects the rights and freedoms of every Canadian citizen, including freedom of religion, right to life, liberty, security of the person, and equality rights. The Charter is also subject to section 1, which may limit a person’s rights and freedoms to the extent that they can be justified in a free and democratic society.
If someone were to challenge the vaccination mandates under the Charter, there is a chance that they may not succeed because the exception that really applies is economic freedom; this means that one should have a choice to obtain the vaccine while they earn a living. Unfortunately, economic freedom is not a protected ground under the Charter. Individuals still have a choice to receive the COVID-19 vaccine or work somewhere else, where the vaccine is not required. Moreover, the claimant must prove that the vaccination mandate has infringed their rights under circumstances that violate the principles of fundamental justice. Since the COVID-19 vaccination seeks to protect the heath and safety of the general public by reducing contraction rates, it would be difficult to argue that the receipt of the vaccination is not justifiable.
The Ontario Human Rights Code (the “Code”) ensures that all Ontarians are given equal rights and protected from discrimination based on several grounds. If an individual residing in Ontario felt that their rights were being violated by an employer or organization registered in Ontario, the most applicable grounds under the Code to challenge that discrimination is disability or religion. This means that one must demonstrate that he or she cannot obtain the vaccination due to having a disability and must provide medical documentation to prove this point. If that is done, the responsibility shifts to the employer to demonstrate that he or she cannot accommodate that disability to the point of undue hardship. If the employer can't demonstrate this, they must meet the needs of those who are unvaccinated in an equal manner to those who are, with the only exceptions being that it places the public’s health and safety at risk, or that the cost to accommodate the disability would be too much from a financial perspective. That means the employer may need to try to place the employee in a role that does not require a vaccination, such as working in an office or from home.
If the challenge is based on religion, then the employee should demonstrate that the vaccination is contrary to his or her religion and that the individual follows that religion. I am unaware of any religion that prohibits this vaccination, but if one were to object to the vaccination based on this religious ground, I would advise that individual to obtain proof that he or she actively practices this religion and that this is prohibited by the religion. This could mean obtaining an affidavit (sworn statement) from a priest explaining the prohibition and also explaining that the individual is highly involved in the church.
Since some vaccination mandates were announced by the Ontario government, such as the vaccination passport, individuals have brought numerous claims of discrimination that have overflooded the Ontario Human Rights Commission (the “Commission”). To address the concerns, on September 22, 2021, the Commission released a comprehensive statement confirming that generally vaccination requirements are permissible, especially to protect those at work, provided that protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.
In the statement, the Commission confirmed that it respects a person’s right to choose concerning receiving the vaccination, however, citizens 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.
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.