A growing number of provinces are implementing vaccine mandates requiring proof of vaccination to attend social events, participate in recreational activities, or access non-essential businesses. Perhaps unsurprisingly, the introduction of vaccine mandates has led to concerns from vaccine hesitant Canadians who believe that these common-sense public health measures are infringing on their individual rights and freedoms. To date, and as illustrated by a recent decision of the Court of Queen's Bench in Saskatchewan, these arguments have been rejected.
On September 27, 2021, former People's Party of Canada candidate Mark Friesen, as well as the groups Concerned Citizens (Estevan) and Unified Grassroots, filed an Application arguing that the province's vaccination policy is in violation of their Charter rights in an effort to obtain injunctive relief and bar the proof-of-vaccine requirement from going into effect on October 1, 2021.
The Saskatchewan proof of vaccination directive applies to non-essential businesses – including dining at indoor restaurants, theaters, fitness centers, and concerts. Public access will also be given to those who can show that they have received a negative COVID-19 test within the last 72 hours, however, a rapid test is not considered acceptable proof of a negative test. Business and organizations exempt from this order include grocery stores, places of worship, libraries and hotels.
The applicant argued that the requirement to show proof of vaccination is in violation of the right to freedom of thought, privacy, and freedom of expression. The Ministry of Justice and the Saskatchewan Crown challenged this argument and the injunction itself, asserting instead that the injunction proceeding was fundamentally flawed because it failed to show any evidence that the proof of vaccine requirements would cause irreparable harm.
On September 30, 2021 the Court sided with the respondents and Justice Mona Dovell dismissed the application. The applicants were ordered to pay $5,000 in costs to the Government of Saskatchewan and the Crown Investments Corporation.
This decision is not the only authority supporting mandatory vaccination policies in Canada. The federal government announced mandatory vaccinations for all federal government employees and select federal employers in the transportation industries back on August 13, 2021. The Ontario Human Rights Commission released a statement on September 22, 2021 that requiring a proof of vaccination to protect people at work or when receiving services are generally permissible under the Human Rights Code. Other provincial human rights Commissions have followed suit (see our BLOG from last week). The Supreme Court of Canada itself has mandated that all nine of its judges, as well as law clerks, registry clerks and court attendants, will be required to be fully vaccinated in order to access the court's hearing room. Finally, both the Saskatchewan and Quebec courts have recently ordered children 12 or over be vaccinated in parental disputes based on the vaccinations being in the child's best interest.
These trends appear to signal support for employers implementing their own mandatory vaccination policies provided they comply with human rights accommodation obligations, although it remains to be seen how arbitrators and courts will interpret these decisions/directives in the wake of expected wrongful/constructive dismissal litigation for non-union employees and disciplinary/just cause arbitrations in the unionized world.
If you have any questions about implementing a vaccination policy in your own business contact the team at CCPartners. We continue to be available to employers to assist in all COVID-19 workplace challenges, including the drafting of vaccination policies and guidance on implementing same.
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