Watch out for more lawsuits | Steve Rastin

Steve Rastin

As the coronavirus pandemic washes through its fourth wave in Canada, like society at large, the legal profession continues to cling to the hope that someday life will return to normal. But what if it doesn't?

Unless we find a way to stop the spread of the virus, this could well be the new norm. And, while we continue to struggle with this pandemic, we can expect to see an increasing number of lawsuits.

Health data suggests 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 would have needed to reach a 90-per-cent immunization rate to prevent the fourth wave. As a result of growing concerns, both governments and employers have begun to implement mandatory workplace vaccinations and vaccination passports.

However, these measures have been met with opposition from Canadians who see them as coercive and an infringement of their rights. A line in the sand has been drawn between those who feel such steps are necessary and those concerned with an erosion of human rights. Can court challenges be far behind?

This month, the Ontario government unveiled its vaccination passport, which will be required to access non-essential businesses, including indoor restaurants, concerts, movie theatres, large organized gatherings and gyms.

Mandatory workplace vaccine policies and vaccination passports can place business owners in a problematic legal predicament. If they fail to implement vaccination policies, they are at the risk of being sued. And if they do implement policies, they could still find themselves on the other end of a lawsuit.

As for vaccine passports, businesses are left with the responsibility of enforcement and face the ire of those they turn away. Not to mention fines for violating government policy.

A KPMG poll found 62 per cent of small- and medium-sized Canadian businesses are planning mandatory vaccinations for their employees while some of the country’s largest employers have already implemented them. 

Those opposed to vaccinations have the right to refuse them. However, protections offered under the Ontario Human Rights Code (OHRC), and the Canadian Charter of Rights and Freedoms are not absolute, and those who are not willing be vaccinated may lose access to restaurants, movie theatres and may even be fired. This lack of access will undoubtedly lead to widespread litigation.

Privacy rights are a concern. Lawyers should have concerns about how much information will be stored on the passports, how it will be disseminated and who will have access to it.

The Office of the Privacy Commissioner of Canada released a statement saying the passports must be developed and implemented in compliance with applicable privacy laws.

“The necessity, effectiveness and proportionality of vaccine passports must be continually monitored to ensure that they continue to be justified. Vaccine passports must be decommissioned if, at any time, it is determined that they are not a necessary, effective or proportionate response to address their public health purposes,” it states.

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. We can also expect an avalanche of wrongful dismissal lawsuits brought by workers who are terminated for refusing to be vaccinated.

Those opposed to vaccines can claim a medical exception. However, the criteria for claiming a medical exemption appear to be very stringent. You cannot simply go to your doctor and ask for a note because you feel the vaccines are unsafe or ineffective.

Ontario’s College of Physicians and Surgeons issued guidelines dealing with doctors’ notes, stating “there are very few acceptable medical exemptions to the COVID-19 vaccination.” Only medical information that supports the exemption can be considered when providing a doctor’s note, the college says.

People who refuse the vaccinations have argued that they should be exempt under OHRC provisions because it violates their personal beliefs. However, the commission has stated that its position “is that a singular belief or personal preference against vaccinations or masks does not appear to be protected on the ground of creed under the Code.”

There are also religious protections in the Code, but again, the onus is on the unvaccinated to prove they belong to a religion that does not condone vaccinations. 

While Charter and human rights arguments are likely to face legal challenges, businesses are also faced with 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 that effort and people are terminated because they refuse, employees are likely to sue. Failing to impose mandatory vaccinations could also find the employer facing litigation or Workplace Safety and Insurance Board (WSIB) claims. And if a member of the public contracts the virus from a business’s employee, lawsuits could follow. Essentially an employer can face litigation from both sides of the spectrum when it comes to mandatory vaccinations.

It is also worth noting that if a business owner is sued, they should not assume insurance will cover them. We are seeing COVID-19 exemptions in policies, so employers would be well advised to review their coverage carefully.

Even professionals in the health-care system, already under immense pressure, could potentially end up in court defending their actions.

What has often been overlooked in this crisis is the fallout from medical procedures that have been put on hold as the health-care professionals deal with COVID patients. Do we know how many people have passed away as a result of delayed medical treatment? It may be more than people realize. People are dying on waiting lists, and a battleground is likely to emerge with those whose medical needs are not being addressed.

The light at the end of the COVID tunnel may be further away than we believe. In the meantime, we should brace ourselves for the legal challenges that lie ahead.

Steve Rastin is senior counsel and lawyer at Rastin Gluckstein Lawyers. His practice focuses on civil litigation, with a focus on personal injury, employment law and mass tort/class action.

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