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.
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.
“I believe they have the rights as an employer to mandate it and to terminate people who won’t comply,” Levitt said.
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’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.“
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
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.”
PORT ALBERNI, B.C. – RCMP say the body of a second person has been found inside their vehicle after a road washed away amid pouring rain on the west coast of Vancouver Island.
Police say two vehicles went into the Sarita River when Bamfield Road washed out on Saturday as an atmospheric river hammered southern B.C.
The body of the other driver was found Sunday.
More coming.
The Canadian Press. All rights reserved.
The B.C. Greens say Sonia Furstenau will be staying on as party leader, despite losing her seat in the legislature in Saturday’s provincial election.
The party says in a statement that its two newly elected MLAs, Jeremy Valeriote and Rob Botterell, support Furstenau’s leadership as they “navigate the prospect of having the balance of power in the legislature.”
Neither the NDP led by Premier David Eby nor the B.C. Conservatives led by John Rustad secured a majority in the election, with two recounts set to take place from Oct. 26 to 28.
Eby says in a news conference that while the election outcome is uncertain, it’s “very likely” that the NDP would need the support of others to pass legislation.
He says he reached out to Furstenau on election night to congratulate her on the Greens’ showing.
But he says the Green party has told the NDP they are “not ready yet” for a conversation about a minority government deal.
The Conservatives went from taking less than two per cent of the vote in 2020 to being elected or leading in 45 ridings, two short of a majority and only one behind the NDP.
This report by The Canadian Press was first published Oct. 22, 2024.
The Canadian Press. All rights reserved.
Toronto FC captain Jonathan Osorio is making a difference, 4,175 kilometres away from home.
The 32-year-old Canadian international midfielder, whose parents hail from Colombia, has been working with the Canadian Colombian Children’s Organization, a charity whose goal is to help disadvantaged youth in the South American country.
Osorio has worked behind the scenes, with no fanfare.
Until now, with his benevolence resulting in becoming Toronto FC’s nominee for the Audi Goals Drive Progress Impact Award, which honours an MLS player “who showed outstanding dedication to charitable efforts and serving the community” during the 2024 season.”
Other nominees include Vancouver Whitecaps midfielder Sebastian Berhalter and CF Montreal goalkeeper Jonathan Sirois.
The winner will be announced in late November.
The Canadian Colombian Children’s Organization (CCCO) is run entirely by volunteers like Monica Figueredo and Claudia Soler. Founded in 1991, it received charitable status in 2005.
The charity currently has four projects on the go: two in Medellin and one each in Armenia and Barranquilla.
They include a school, a home for young girls whose parents are addicted to drugs, after-school and weekend programs for children in a disadvantaged neighbourhood, and nutrition and education help for underprivileged youth.
The organization heard about Osorio and was put in contact with him via an intermediary, which led to a lunch meeting. Osorio did his due diligence and soon got back to the charity with his decision.
“It was something that I wanted to be a part of right away,” said Osorio, whose lone regret is that he didn’t get involved sooner.
“I’m fortunate now that to help more now that I could have back then,” he added. “The timing actually worked out for everybody. For the last three years I have donated to their cause and we’ve built a couple of (football) fields in different cities over there in the schools.”
His father visited one of the sites in Armenia close to his hometown.
“He said it was amazing, the kids, how grateful they are to be able to play on any pitch, really,” said Osorio. “But to be playing on a new pitch, they’re just so grateful and so humble.
“It really makes it worth it being part of this organization.”
The collaboration has also made Osorio take stock.
“We’re very fortunate here in Canada, I think, for the most part. Kids get to go to school and have a roof over their head and things like that. In Colombia, it’s not really the same case. My father and his family grew up in tough conditions, so giving back is like giving back to my father.”
Osorio’s help has been a godsend to the charity.
“We were so surprised with how willing he was,” said Soler.
The TFC skipper has helped pay for a football field in Armenia as well as an ambitious sports complex under construction in Barranquilla.
“It’s been great for them,” Figueredo said of the pitch in Armenia. “Because when they go to school, now they have a proper place to train.”
Osorio has also sent videos encouraging the kids to stay active — as well as shipping soccer balls and signed jerseys their way.
“They know more about Jonathan than the other players in Colombia,” Figueredo said. “That’s the funny part. Even though he’s far away, they’ve connected with him.”
“They feel that they have a future, that they can do more,” she added. “Seeing that was really, really great.”
The kids also followed Osorio through the 2022 World Cup and this summer’s Copa America.
Back home, Osorio has also attended the charity’s annual golf tournament, helping raise funds.
A Toronto native, he has long donated four tickets for every TFC home game to the Hospital for Sick Children.
Vancouver’s Berhalter was nominated for his involvement in the Whitecaps’ partnership with B.C. Children’s Hospital while Montreal’s Sirois was chosen for his work with the Montreal Impact Foundation.
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This report by The Canadian Press was first published Oct. 21, 2024.
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