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Companies are implementing vaccine mandates. Can employees reject them? – CBC.ca

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Federal and provincial governments, private businesses as well as Canada’s biggest banks have in recent weeks announced plans to implement mandatory vaccination policies for many of their returning staff. 

These vaccine mandates require their employees to be vaccinated against COVID-19. But do employers have the right to impose such mandates? What if employees refuse?

CBC News looks at the legal issues these mandates raise.

Do companies face legal hurdles in imposing vaccine mandates?

That will likely depend on the particular circumstances that an employer and employee find themselves in, says Toronto-based employment lawyer Alex Lucifero. And the law will differ, he says, based upon a number of factors — for example, the particular industry, or whether the employees are unionized.

“There’ll be a bunch of different factors that will be taken into consideration,” he said. “I imagine eventually there will potentially be different laws for different industries or groups of employees. For that reason, it makes it extremely complex and there is no ‘one size fits all’ answer.”

Employment lawyer Adam Savaglio, a partner with Scarfone Hawkins LLP in Hamilton, Ont. told CBC News that there are many misconceptions and incorrect assumptions about the law around vaccination mandates.

“They can’t necessarily compel, but they can certainly ask for evidence of vaccination because they have an underlying obligation to that worker and others in the workplace to provide a healthy and safe workplace,” he said in an interview.

However, Toronto-based employment lawyer Howard Levitt said that in Canadian law, safety always trumps privacy. That means employers will be permitted by the courts and arbitrators to have compulsory vaccination policies, except for religious and medical exemptions.

Can a company fire an employee who refuses to get vaccinated?

“I believe they have the rights as an employer to mandate it and to terminate people who won’t comply,” Levitt said.

Canada’s biggest banks will require employees who return to the office to be vaccinated or submit to regular testing. (CBC)

Lucifero said someone who refuses to adhere to an employer’s vaccine mandate because of a medical condition or religious belief cannot be fired because that would be considered discrimination under the human rights code.

“But the reality is that your employer can let you go because you haven’t been vaccinated. An employer can actually let you go for no particular reason at all. That’s what we call a ‘without cause’ termination,” he said.

Your employer doesn’t even need a reason to let you go as long as the proper amount of severance is paid.”

What about charter rights to protect me if I don’t want to be vaccinated?

What’s important for people to understand, says constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University, is that the Charter of Rights and Freedoms only applies to government action. That means, when it comes to vaccine mandates, the charter only applies for government workers refusing such a decree.

“It doesn’t apply to private businesses or [a] private individual’s actions,” he said. “Statute law does, privacy laws, human rights codes, those kind of things.  But only government action is restricted by the charter.

What charter rights might apply to vaccine mandates?

There are potentially at least three sections of the charter that could be used by a government employee to challenge a vaccine mandate, including Section 7 — the right to life, liberty and security of the person.

That could be cited to challenge “a policy that seems to coerce people into getting vaccinated,” wrote University of B.C. law professor Debra Parkes and University of Ottawa law professor Carissima Mathen in a recent editorial. 

However, Bryan Thomas, adjunct professor at the University of Ottawa’s Centre for Health Law, Policy & Ethics, says he  believes challenges under Section 7 are unlikely to be successful because that section doesn’t protect an individual’s economic interests or “your ability to retain a job.”

Section 15, which offers protection from discrimination, could also be invoked but Thomas says he believes it would fail as an argument because an employer is not actually discounting anyone’s interests.

WATCH | All kinds of employers grappling with vaccine mandates

Workplaces consider COVID-19 vaccine requirements

6 days ago

Some Canadian companies have imposed their own COVID-19 vaccine requirements on employees who want to return to the workplace, while others are hoping the federal government’s new mandate will be applied to them. But some employment lawyers say though vaccine mandates are legal, they’re not simple. 2:04

“[They’re] making up kind of this a legitimate form of discrimination and saying, you know, you unvaccinated person pose a great risk to yourself and to others by entering the workplace,” said Thomas.

Section 2A, the so-called religious exemption, or freedom of conscience, could also be applicable.

Parkes and Mathen wrote that this an underdeveloped area of charter law, but could be relevant “where a person has a sincerely held belief that the vaccination is harmful to their health or, in some other way, deeply wrong.”

But Thomas said someone who is vaccine hesitant, for example, couldn’t claim that’s a freedom of conscience issue.

“The courts have a more rigorous test or standard for conscience,” he said. “It has to be something that’s akin to a religion in your life.”

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Ceiling high for Vancouver Whitecaps midfielder Ahmed: Canada coach

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VANCOUVER – Jesse Marsch issued Canada’s men’s soccer squad a challenge — get physical.

The edict came after the Canadians surprised many at this summer’s Copa America tournament, making it through to the semifinals. As his players departed for their professional clubs, the head coach wanted them thinking about continued growth.

“I challenged them to be more physically present in the matches that they played in,” Marsch said. “I’ve tried to encourage all the players to sprint more, to win more duels, to win more balls, to be more dynamic in matches.”

When Canada reconvened for a pair of friendlies last week, the coach saw some players had already heeded his call, including Vancouver Whitecaps product Ali Ahmed.

The 23-year-old midfielder started in both Canada’s 2-1 victory over the United States on Saturday and Tuesday’s 0-0 draw against Mexico.

“I’m really happy for him,” Marsch said. “I think he’s still young and still has a lot of room and potential to continue to grow.”

Playing under Marsch — who took over as head coach in May — has been a boon for the young athlete, currently in his second full season with Major League Soccer’s Whitecaps.

“Jesse has a very clear way of playing,” Ahmed said. “And I think the way we’ve been training and the way we’ve been growing as a group, it’s been helpful for me.”

The reward of getting minutes for a national team can spur a player’s growth, including Ahmed, said Whitecaps head coach Vanni Sartini.

“Of course that fuels him inside to say ‘Hey, I want to be a better player. I want to get to that stage,'” said Sartini.

Vancouver had six players — including Ahmed — away on international duty during its 0-0 draw against Dallas FC on Saturday. The absences are a good problem to have, Sartini said.

“Because we have players that are close to the national team, we have a lot of players that development is faster, better, bigger than it would have been if they hadn’t been called,” he said.

Born in Toronto, Ahmed came up through the Whitecaps’ academy system and played for Vancouver’s MLS Next Pro side before cementing his spot on the first team in 2023. He put up two goals and two assists across 22 regular-season games, and added another goal and another helper in 19 appearances this year.

Taking the next step will require the five-foot-11, 154-pound Ahmed to push himself physically, Marsch said.

“Tactically, he’s technically gifted,” the coach said. “I’ve told him he’s got to get in the gym more.

“There’s a lot of these little things where too many guys, they still look like kids and we need to help them look like men and play like men. And that’s what the high standards of the game are about.”

Marsch has quickly adjusted to recalibrating standards in his short time with Team Canada. Since taking over the squad in May, the coach said he’s learned the players are smarter and more capable than he originally thought, which forces the coach to constantly recalibrate his standards.

“That’s my job right now, to keep raising the level of the demands,” he said.

The way 40th-ranked Canada is viewed on the international stage is evolving, too.

“I think we’re changing the perception on the way we’re playing now,” he said. “I think beating the U.S. — it would have been nice to beat Mexico as well — the way we did, the way that we performed at Copa, I think teams are starting to look at us differently.

“Right now, I think we’re focused on ourselves. We’re definitely trying to be the best in CONCACAF and we have higher goals as well.”

This report by The Canadian Press was first published Sept. 12, 2024.



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Lawyer says Chinese doping case handled ‘reasonably’ but calls WADA’s lack of action “curious”

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An investigator gave the World Anti-Doping Agency a pass on its handling of the inflammatory case involving Chinese swimmers, but not without hammering away at the “curious” nature of WADA’s “silence” after examining Chinese actions that did not follow rules designed to safeguard global sports.

WADA on Thursday released the full decision from Eric Cottier, the Swiss investigator it appointed to analyze its handling of the case involving the 23 Chinese swimmers who remained eligible despite testing positive for performance enhancers in 2021.

In echoing wording from an interim report issued earlier this summer, Cottier said it was “reasonable” that WADA chose not to appeal the Chinese anti-doping agency’s explanation that the positives came from contamination.

“Taking into consideration the particularities of the case, (WADA) appears … to have acted in accordance with the rules it has itself laid out for anti-doping organizations,” Cottier wrote.

But peppered throughout his granular, 56-page analysis of the case was evidence and reminders of how WADA disregarded some of China’s violations of anti-doping protocols. Cottier concluded this happened more for the sake of expediency than to show favoritism toward the Chinese.

“In retrospect at least, the Agency’s silence is curious, in the face of a procedure that does not respect the fundamental rules, and its lack of reaction is surprising,” Cottier wrote of WADA’s lack of fealty to the world anti-doping code.

Travis Tygart, the CEO of the U.S. Anti-Doping Agency and one of WADA’s fiercest critics, latched onto this dynamic, saying Cottier’s information “clearly shows that China did not follow the rules, and that WADA management did nothing about it.”

One of the chief complaints over the handling of this case was that neither WADA nor the Chinese gave any public notice upon learning of the positive tests for the banned heart medication Temozolomide, known as TMZ.

The athletes also were largely kept in the dark and the burden to prove their innocence was taken up by Chinese authorities, not the athletes themselves, which runs counter to what the rulebook demands.

Despite the criticisms, WADA generally welcomed the report.

“Above all, (Cottier) reiterated that WADA showed no bias towards China and that its decision not to appeal the cases was reasonable based on the evidence,” WADA director general Olivier Niggli said. “There are however certainly lessons to be learned by WADA and others from this situation.”

Tygart said “this report validates our concerns and only raises new questions that must be answered.”

Cottier expanded on doubts WADA’s own chief scientist, Olivier Rabin, had expressed over the Chinese contamination theory — snippets of which were introduced in the interim report. Rabin was wary of the idea that “a few micrograms” of TMZ found in the kitchen at the hotel where the swimmers stayed could be enough to cause the group contamination.

“Since he was not in a position to exclude the scenario of contamination with solid evidence, he saw no other solution than to accept it, even if he continued to have doubts about the reality of contamination as described by the Chinese authorities,” Cottier wrote.

Though recommendations for changes had been expected in the report, Cottier made none, instead referring to several comments he’d made earlier in the report.

Key among them were his misgivings that a case this big was largely handled in private — a breach of custom, if not the rules themselves — both while China was investigating and after the file had been forwarded to WADA. Not until the New York Times and German broadcaster ARD reported on the positives were any details revealed.

“At the very least, the extraordinary nature of the case (23 swimmers, including top-class athletes, 28 positive tests out of 60 for a banned substance of therapeutic origin, etc.), could have led to coordinated and concerted reflection within the Agency, culminating in a formal and clearly expressed decision to take no action,” the report said.

WADA’s executive committee established a working group to address two more of Cottier’s criticisms — the first involving what he said was essentially WADA’s sloppy recordkeeping and lack of formal protocol, especially in cases this complex; and the second a need to better flesh out rules for complex cases involving group contamination.

___

AP Summer Olympics:



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Shapovalov, Auger-Aliassime lift Canada over Finland 3-0 in Davis Cup tie

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MANCHESTER, United Kingdom – Canada’s top male tennis players have defeated Finland 3-0 in the group stage of the Davis Cup Final.

Denis Shapovalov of Richmond Hill, Ont., beat Eero Vasa 7-6 (2), 6-2 in Tuesday’s first singles match. Montreal’s Felix Auger-Aliassime then dispatched Otto Virtanen 6-2, 6-3 in the second singles match.

With the tie already won thanks to the two singles victories, Shapovalov and Auger-Aliassime teamed up to best Virtanen and Harri Heliovaara 6-2, 7-5 in doubles play.

There was an element of revenge after Canada lost to Finland in last year’s quarterfinals.

“Everybody’s in good spirits, so it’s very good,” Auger-Aliassime said. “Any motivation is good, but I think it’s a different year, a different time, and (last year’s loss) was behind us. This year we have a full team and everybody’s playing better than last year. Everybody’s improved.”

It’s the second consecutive group-stage tie Canada has won after beating Argentina 2-1 on Tuesday. Canada, the lone seeded team in Group D, will face host Great Britain on Sunday.

Four groups of teams are playing in four cities this week to qualify for the eight-team Finals in Malaga, Spain, in November. The top two countries in each four-team group advance.

Since Canada’s undefeated after two opponents in the group stage, it is set to advance to the Davis Cup Finals.

“Couldn’t ask for more today, super proud of the team,” said captain Frank Dancevic. “Great team spirit, amazing bench team spirit, and fans pushing us through the day.”

It is Canada’s fifth consecutive appearance in the Davis Cup Finals, having won its only title in 2022. The Canadians defeated South Korea 3-1 in February’s Davis Cup qualifiers in Montreal to reach the group stage of the finals.

— With files from The Associated Press.

This report by The Canadian Press was first published Sept. 12, 2024.

The Canadian Press. All rights reserved.



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