THUNDER BAY – Complaints that workplace vaccine mandates violate Canadians’ rights are unlikely to hold up in court, according to a panel convened by Lakehead University’s law school.
Debate over vaccine requirements has ignited in recent days as Ontario introduced vaccine certificates and some hospitals – including Thunder Bay’s – began suspending unvaccinated workers under provincially mandated policies.
Law professors Mariette Brennan of Lakehead’s Bora Laskin Faculty of Law and Vanessa Gruben of the University of Ottawa addressed the legality of those requirements in a panel held Thursday via Zoom.
The pair concluded most COVID-19 vaccine policies seem to have solid legal footing. That theory is likely to be put to the test sooner rather than later.
“We’re almost certainly going to see some cases arise in the labour law context,” said Gruber.
Bora Laskin dean Jula Hughes, who hosted the panel, said public confusion on the legality of vaccine mandates was understandable, since several different legal standards can apply, depending on the context.
If the policy is government-mandated, a challenge under the Canadian Charter of Rights and Freedoms could be possible.
The Charter can apply to broader public sector agencies, like universities and hospitals, when those institutions are implementing government policies, like Ontario’s directive covering many health and education settings, said Gruber.
If the policy is mandated by an employer, on the other hand, the Charter doesn’t apply. Instead, employees could look to collective bargaining agreements and the Ontario Human Rights Code.
Brennan, who has a background in international human rights law, said Charter challenges would likely focus on sections 2(a), 7, and 15, but she believes they're unlikely to succeed.
Section 2(a), protecting freedom of conscience and religion, is a case in point.
“The chances [that] a refusal to vaccinate could be considered a conscience belief, I personally believe it’s very slim,” she said. “It’s not meant to protect any sort of whimsical belief that anybody has, it doesn’t protect lifestyle choices – it has to be a guiding set of beliefs that govern your day-to-day decision-making.”
Likewise, Brennan is sceptical of claims vaccine policies violate the Section 7 rights to life, liberty, and security of the person.
“Vaccine mandates are not forced medical intervention,” she said. “Yes, there are obviously serious repercussions – and we’ve seen some [situations] where people can lose a job or their livelihood. But it is still a choice.”
If a policy did trigger one of those sections, Brennan said the Section 1 clause allowing “reasonable limits” on Charter rights could still rescue vaccine policies.
“Even if I’m wrong and they do end up finding a violation of your Section 7 rights… Charter rights can be limited,” she said. “What we’ve been seeing coming out of various pandemic litigation, because there has been some, is that the government has been given significant leeway to try to eradicate COVID-19.”
The government will have to show its rules minimally impair Charter rights while achieving their goals, she noted.
It’s possible policies could be considered too broad – like if a university applied a vaccine policy to all students, even online learners who don’t visit campus, she said.
But in practice, she found the vast majority of workplace policies seem to be avoiding those potential pitfalls.
Challenges to vaccine policies are most likely to succeed in unionized workplaces based on provisions in collective agreements, said Gruber, who pointed to past challenges of influenza-related vaccine policies in health care settings.
The outcomes of those challenges has differed, but decisions have consistently indicated policies should be tailored to the specific workplace context, and be based on solid evidence about health risks and why the policy is necessary, she said.
Challenges could also come under the Ontario Human Rights Code, which protects against discrimination on two grounds Gruben said could be relevant: creed and disability.
Disability claims could arise if an employer fails to offer exemptions for people with a valid medical reason not to be vaccinated.
That group is “fairly limited,” Gruben said, mainly including those with an allergy to a vaccine ingredient or who suffered a serious reaction after their first shot.
It will be much trickier for employees to make a case that vaccine mandates discriminate against them due to creed, she said.
While a creed can include firmly-held non-religious beliefs, the Ontario Human Rights Tribunal made clear Wednesday that personal anti-vaccine sentiments don’t meet that test.
“Personal preferences or singular beliefs do not amount to a creed for the purposes of the Code,” it stated.
The expert answers weren’t always welcomed by attendees, a handful of whom expressed their strong opposition to vaccine mandates in the event’s group chat. Several complained the panelists were “biased" while sharing debunked claims about COVID-19 vaccines.
