Watch out for other lawsuits | Steve rastin
|” style =”margin: 5px 15px 0 0px; border: 1px solid # 999; width: 150px;”/>|
As the coronavirus pandemic crosses its fourth wave in Canada, like society as a whole, the legal profession continues to cling to the hope that one day life will return to normal. But what if it doesn’t?
Unless we find a way to stop the spread of the virus, this may well be the new normal. And, as we continue to fight this pandemic, we can expect to see an increasing number of lawsuits.
Health data suggests that vaccinations have been an effective weapon in stemming the tide of COVID-19, but with the onset of the delta variant, vaccines are only effective if enough people are immunized. Recent estimates show that Canada should have achieved a 90 percent vaccination rate to avoid Wave Four. Due to growing concerns, governments and employers have started implementing mandatory workplace vaccinations and vaccination passports.
However, these measures have met with opposition from Canadians who see them as coercive and an infringement of their rights. A line has been drawn between those who believe such measures are necessary and those who are concerned about an erosion of human rights. Can legal challenges be far behind?
This month, the Ontario government unveiled its vaccination passport, which will be required for access to non-essential businesses, including indoor restaurants, concerts, cinemas, large organized gatherings and gymnasiums.
Mandatory workplace vaccination policies and vaccination passports can put business owners in a difficult legal position. If they do not implement immunization policies, they risk prosecution. And if they implement policies, they could always find themselves at the other end of a trial.
When it comes to vaccine passports, companies find themselves with the responsibility of enforcement and face the wrath of those they refuse. Not to mention fines for violating government policy.
A KPMG survey found that 62 percent of Canadian small and medium-sized businesses schedule mandatory vaccinations for their employees while some of the country’s largest employers have already implemented them.
Those who oppose vaccinations have the right to refuse them. However, the protections offered under the Ontario Human Rights Code (OHRC) and the Canadian Charter of Rights and Freedoms are not absolute, and those who do not want to be vaccinated may lose access to restaurants, cinemas and may even be made redundant. This lack of access will undoubtedly lead to a lot of litigation.
Privacy rights are a concern. Lawyers should have concerns about how much information will be stored on passports, how it will be disseminated and who will have access to it.
The Office of the Privacy Commissioner of Canada has published a declaration affirming that passports should be developed and implemented in accordance with applicable privacy laws.
“The necessity, effectiveness and proportionality of vaccine passports must be continuously monitored to ensure that they continue to be justified. Vaccine passports should be decommissioned if, at any time, it is determined that they do not constitute a necessary, effective or proportionate response to meet their public health objectives, ”he said.
It remains a delicate balance between individual rights and those of society, and we are sure to see cases before the Human Rights Tribunal of Ontario. One can also expect an avalanche of unfair dismissal lawsuits brought by workers made redundant for refusing to be vaccinated.
Opponents of vaccines can claim a medical exception. However, the criteria for requesting a medical exemption appear to be very strict. You can’t just go to your doctor and ask for a note because you think the vaccines are dangerous or ineffective.
The College of Physicians and Surgeons of Ontario has issued guidelines dealing with doctors’ notes, stating “there is very little Acceptable medical exemptions from COVID-19 vaccination. Only medical information supporting the exemption may be taken into account when providing a medical certificate, according to the college.
People who refuse vaccinations have argued that they should be exempted under the OHRC provisions because it violates their personal beliefs. However, the commission stated that its position “is that a singular belief or personal preference against vaccinations or masks does not appear to be protected for reasons of belief under the Coded. “
There are religious protections in the Code as well, but again, the onus is on the unvaccinated to prove that they belong to a religion that does not tolerate vaccinations.
While Charter and human rights arguments are subject to legal challenge, companies also face their responsibilities to their workers and the public, which could also lead to litigation.
Employees have the right to a safe workplace and employers have an obligation to protect them. If companies implement mandatory vaccinations in this effort and people are fired for refusing, employees are likely to sue. Failure to impose mandatory vaccinations could also result in an employer facing litigation or claims with the Workplace Safety and Insurance Board (WSIB). And if a member of the public contracts the virus from a company employee, lawsuits could follow. Essentially, an employer can face litigation on both sides of the spectrum when it comes to mandatory vaccinations.
It should also be noted that if a business owner is sued, they should not be assumed that insurance will cover them. We are seeing COVID-19 exemptions in policies, so employers would be well advised to carefully review their coverage.
Even healthcare professionals, already under immense pressure, could potentially find themselves in court to defend their actions.
What has often been overlooked in this crisis is the fallout from medical procedures that have been put on hold as healthcare professionals deal with COVID patients. Do we know how many people have died as a result of delayed medical treatment? It may be more than people think. People are dying on waiting lists and a battleground is likely to emerge with those whose medical needs are not met.
The light at the end of the COVID tunnel may be further away than we think. In the meantime, we must prepare for the legal challenges that lie ahead.
Steve Rastin is Senior Counsel and Attorney at Lawyers Rastin Gluckstein. His practice focuses on civil litigation, with an emphasis on personal injury, employment law and class / tort lawsuits.
Interested in writing for us? Find out more about how you can add your voice to The Lawyer’s Daily, contact the editor of the analysis Yvette Trancoso-Barrett at [email protected] or dial 905-415-5811.