Can a Person Be Discriminated Against For Failing to Get a Covid-19 Vaccination?
The Right to Deny Employment, Access to Services, Among Other Things, to Persons Who Fail to Obtain Vaccination Against Covid-19 Remains An Unknown. While Many Laws Appear Applicable to Covid-19 Vaccination Issues, Some Laws Appear to Support Mandates and Other Laws Appear to Support Protection Against Mandates.
Understanding the Speculation Within Legal Advice About Mandatory Vaccination Due to a Lack of Precedent Cases
The last worldwide pandemic was in 1918. Back then, vaccination technology was limited and laws on many issues involving human rights and workplace protections were lacking. Even the Canadian Charter of Rights and Freedoms was lacking. Accordingly, today, during the Covid-19 pandemic, there are great challenges in answering questions posed to legal representatives. Such questions include, "Can an employer force employees to get vaccinations?", "Is a business allowed to forbid entry to an unvaccinated person?", among many others. The answer to these questions is difficult to provide with a high degree of certainty whereas the relevant laws appear vague and include exceptions that may be broadly interpreted thereby providing many possible twists and turns. Of course, until the Supreme Court of Canada makes final determinations, only educated and informed guesses presently exist.
There are many laws that appear applicable to the issue of whether a person may be forced, or firmly influenced, to accept a vaccination. Whereas these various laws may support, or conflict with, one another, such greatly contributes to the challenge in providing legal advice with a clear answer as to whether a person may be required to vaccinate. These laws include, the Canadian Charter of Rights and Freedoms, the Human Rights Code, R.S.O. 1990, c. H.19, the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, among others. Specifically, the sections of these laws that appear applicable include:
2 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Life, liberty and security of person
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
Harassment in accommodation
(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
3 Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Accommodation of person under eighteen
4 (1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.
(2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.
5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
6 Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Harassment because of sex in accommodation
7 (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.
Harassment because of sex in workplaces
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Sexual solicitation by a person in position to confer benefit, etc.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
The above laws appear relevant to issues of mandatory vaccinations whereas:
- The Charter of Rights and Freedoms protects against government interference in the section 2 rights of freedom of conscience, religion, thought, belief, opinion, and expression as well as the section 7 right to security of person;
- The Human Rights Code provides protection from discrimination by government, corporations, or individuals engaged in business, based on characteristics that may relate to vaccination choices such as cultural beliefs as well as disability and perhaps other things in relation to the accessing of services, accommodations, contracts, employment, and vocational associations; and
- The Occupational Health and Safety Act provides protection to employees by requiring employers to provide a safe workplace.
Furthermore, there are few case law decisions of judges regarding mandatory vaccinations; and of these, there are obviously zero that address whether a mandatory vaccination is lawful when facing a worldwide pandemic. Accordingly, legal practitioners are left with only various statute laws to review and to use in providing educated, but best guess, advice to persons seeking legal advice on the issue. Interestingly, within the decision of Duplessis v. Canada, 2000 CanLII 16541, the Federal Court makes a reference to a military court martial at which it was stated that a forced vaccination program violates Charter rights. Specifically, it was stated:
 In the Standing Court Martial of Ex-Sergeant Kipling, whose breach of command resulted in severe disciplinary proceedings, the Chief Military Judge found that the forced vaccination program did violate section 7 of the Charter, in that the accused's right to life, liberty, and security of the person was infringed. At page 2 of the minutes of the proceedings of the Standing Court Martial:
Non-consensual vaccination under the threat of disciplinary proceedings amounts to an invasion of the bodily integrity and personal autonomy of a person. [emphasis added]
Interestingly, taking the position that a vaccination is against personal religious beliefs, or other reason, may be troublesome for persons who state so merely as an excuse of convenience without a genuine history of anti-vaccination beliefs. Whereas a person may hold a belief that vaccinations against Covid-19 were rushed through the health approval system, such a person may be challenged, legally, from stating religious grounds, or other beliefs, as a reason to decline a vaccination. As a potentially concerning example, an employer that terminates an employee who is unwilling to adhere to a vaccination mandate may have grounds to do so based upon the Occupational Health and Safety Act requirement to provide a safe workplace for all employees. Where the terminated employee may attempt to argue religious discrimination, the employee will likely need to demonstrate membership within a religion that is genuinely known to take an anti-vaccination stance and the employee will likely need to demonstrate a history of avoiding vaccinations.
Interestingly, and albeit a case from British Columbia, yet relating to a Human Rights Code, R.S.B.C. 1996, Chapter 210 which is very similar to the Human Rights Code of Ontario, it was explained in Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119 that more than just an ideological concern would be necessary prior to a finding of discrimination in accessing services due to a lack of vaccination. Specifically, it was said:
 The Tribunal reviews complaints upon filing to ensure that they allege facts that, if proved, could violate the Code. To establish discrimination, a complainant must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact: Moore v. British Columbia, 2012 SCC 61 at para. 33 [Moore].
 In the present complaint, the Complainant says that he has asthma, had pneumonia as a child, and “does not want your experimental COVID vaccine.” Asthma could constitute a physical disability, which is a protected characteristic under the Code.
 Moving onto the second requirement, however, the Complainant does not allege facts of having experienced an actual adverse impact. He says only that “[i]n a news conference, it was announced that the experimental vaccine is being made mandatory”, and that he does not want services limited “because of your experimental vaccine”. At best, the Complainant references a prospective adverse impact, not one that he has actually experienced.
 Before concluding, I note that it is not enough to prove discrimination to have a protected characteristic and have experienced an adverse impact: there must be a connection between the two. The person making the complaint must establish that connection. Here, even if the Complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID-19, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.
Ontario Human Rights Commission Viewpoint
On September 22 2021, the Ontario Human Rights Commission published a policy statement on COVID-19 vaccine mandates and proof of vaccine requirements following the announcement by the Ontario government that access to various facilities would be forbidden to those persons unable to provide proof of vaccination. As per the Ontario Human Rights Commission statement:
- The mandate to vaccinate and the requirement to provide proof of vaccination with respect to employment premises as well as access to services is permitted by the Human Rights Code subject to implementation of reasonable accommodations for persons who are unable to get vaccinated due to a reason protected by the Human Rights Code;
- The Human Rights Code is absent of protection for persons who forgo vaccination due to personal choice rather than a genuine concern addressed by the Human Rights Code;
- The personal choice to forgo vaccination based on creed beliefs requires that such beliefs are indeed notoriously held by the creed of the person rather than just individually by a person who is a member of a creed; and
- The reasonable accommodation requirement for unvaccinated persons extends only to the point of undue hardship and posing a risk to other persons, such as fellow employees, customers, among others, may be deemed as falling within the undue hardship that is an exception to the reasonable accommodation requirement.
The policy statement published by the Ontario Human Rights Commission provides significant insight as to what employers and service providers, among others, should expect in an actual case decision from the Human Rights Tribunal of Ontario. Summed up, it appears that the policy statement is advising the public that vaccination policies will be upheld and allegations of human rights violations will need a strong and convincing argument that a failure to accommodate occurred.
As an example, a worker employed in the food services sector and who is unable to receive the vaccine for medical reasons may seek a reasonable accommodation; however, the employer of such person may be able to argue that such an accommodation would impose an undue hardship, including substantial health risk to fellow workers as well as customers and the general public. However, for a worker who is unable to receive the vaccine for the same medical reasons who works in an independent environment with little if any exposure to other persons, a reasonable accommodation may be quite possible.
Ultimately, without a clear decision from the Supreme Court of Canada, it remains unknown whether mandatory vaccination policies of government and businesses will be deemed legal and enforceable. Accordingly, without clear precedent law to answer the many questions pertaining to this unprecedented issue, legal advisors are left in the awkward position of being able to provide only best guess advice. Ultimately, legal advisors can only provide the relevant legal information without guarantees. Clients may then review and assess the information received to make, at best, reasonably informed decisions.