MANDATORY VACCINATION POLICIES: THE TRUTH AND MISCONCEPTIONS.
There is NO mandatory vaccination requirement for the public in Ontario. All vaccines, as well as other medical treatments, are subject to informed consent obtained by the vaccination facility before taking a vaccine. Without your informed consent they have no right to give a shot.
Section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (Act), reads as follow:
(1) A health practitioner who proposes a treatment for a person shall not
administer the treatment, and shall take reasonable steps to ensure that it is not
(a) he or she is of the opinion that the person is capable with respect to the
treatment, and the person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the
treatment, and the person’s substitute decision-maker has given consent on the
person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).
However, there are some requirements as to the consent established and failure to comply with any of these requirements will invalidate the consent and will make medical treatment illegal.
Section 11 of the said Act 11 (1) states that the following are the elements that are required for consent to treatment:
1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud.
Let’s take a closer look at what does it means. Consent is considered informed when the information provided to the patient includes a clear explanation of the nature of the treatment, expected benefits, material risks and possible side effects of the treatment. It is also required to disclose an alternative possible and consequences of not having the treatment (s. 11. (3) of the Act.
If the vaccination facility did not provide you with the alternatives, or saying that there are no alternatives available, even if other information was provided to you, your consent was not “informed”.
Your consent is also not informed if instead of disclosing the consequences of not being vaccinated you see the statements that “it is recommended”, “it is required”, “for the sake of the safety” and other like statements that are actually demanding you to take a shot.
My personal opinion that a Consent Form that was offering to be signed by patients before vaccination is not valid as it does not have an explanation on what might/will happen if a patient did not take a vaccine which is mandatory under the Act.
You may verify the same by searching and examining the ‘COVID-19 Vaccine Information Sheet’ and ‘What you need to know about your Covid-19 vaccine appointment” documents at the Ontario Health website.
It is also vital that consent be given voluntarily. As long as there is no mandatory vaccination exist, no one can force you to take a vaccine. Your employer can not require you to take a vaccine as this will vitiate your consent.
If a decision to take a vaccine was made under the pressure of termination, this will invalidate your consent and made your treatment illegal.
Why does this matter? Because, as a general rule, if you take a vaccine under the fear to be terminated you may sue the vaccination facility and your employer for the battery. They both will be liable for damages caused to you as they both contributed to the battery.
There is a considerable amount of case law developed over time to the effect that medical treatment without consent does constitute a battery. The damages might be significant as in reality COVID-19 vaccine changed your DNA.
If you want to take this route, it is advisable that you first obtain legal advice from a legal professional. Many risks and details exist that require legal assistance.
IS VACCINATION MANDATORY FOR THE BUSINESSES?
Unfortunately, the businesses are subject to different regulations and are required to ensure the safety of the establishment. Different set of rules apply to the businesses that are required to have separate Policy for the employees and Visitors. Here they are.
MANDATORY POLICY FOR THE EMPLOYEES. WHAT DOES IT ACTUALLY MEAN?
The Occupational Health and Safety Act (OHSA) prescribes legal duties for employers to ensure the safety of the workplace. While the business needs to ensure safety, no requirements or rights exist to allow the business to demand vaccination. The business may well ensure safety by asking the test results to be provided by employees. By doing that businesses will ensure the absence of the virus at the workplace and the safety of others.
Implementing a mandatory vaccination policy for the employees was found illegal many times. For example, in a unionized environment, we can refer to St. Peter's Health System v. Canadian Union of Public Employees, Local 778 (Flu Vaccination Grievance),  O.L.A.A. No. 164. In this case Ontario Labour Arbitration Awards considered a Union’s complaint of mandatory vaccination policy established by the Hospital that was required their employee to undergo mandatory vaccination in case of a flu virus outbreak. Hospitals wanted such policies to be implemented to ensure safety. The Union raised the issue that with neither statutory nor collective agreement authority, the Hospital has no right to impose as a condition of employment forced medical treatment either by virtue of a flu shot or the requirement to take medication, and therefore this is the most serious form of invasion of privacy because it gives the employer a right to invade the person.
The grievance was allowed, and the Policy was invalidated. Employees were allowed not to take a flu shot.
For the not unionized environment, there is a significant amount of case law exist that in the event of the flu outbreak it is reasonable for the employer to ask that a test be provided to ensure safety. However, no law exists that allows a mandatory vaccination. Instead, having mandatory medical treatment imposed is always considered a breach of privacy. For example, in R v Sim R. v. Sim,  A.J. No. 703 taking DNA samples was allowed because the accused has a lower expectation of privacy compared to the average person plus it was required in the interests of justice.
There is also a risk that demanding mandatory vaccination may give rise to a battery claim and businesses will face severe monetary consequences of such illegal demand.
When it comes to COVID-19 regulations, they are also do not provide for mandatory vaccination. Implementing mandatory vaccination policies for employees has become mass after the federal government announcement of such policy for its employee.
When Government announced that it will implement a mandatory vaccination policy for its workers that means nothing more than it was able to secure Union’s agreement to such a measure. Union is the employee’s representative in law and has consented to the mandatory vaccination on the employee’s behalf.
This was nothing more than an agreement of both sides to implement mandatory vaccination requirements.
The key difference between government and private sector employees is that the private sector is mostly not unionized, and as such, every employee is bargaining on its own and may advance a claim to the court. Non-unionized employees are not required to ask Union to defend them and can claim their rights independently.
If you are not unionized, your employer may ask you to agree to the Policy but has no right to demand you to take vaccine. Even if the Health unit asking employer to require such vaccination, this does not meant that the health Unit require employee to take a vaccine!
It is essential to understand that O. Reg. 364/20: Rules for areas at step 3 and at the Roadmap exit step provides as follow:
(2.1) The person responsible for a business or organization that is open shall operate the
business or organization in compliance with any advice, recommendations and
instructions issued by the Office of the Chief Medical Officer of Health, or by a medical
officer of health after consultation with the Office of the Chief Medical Officer of Health,
(a) requiring the business or organization to establish, implement and ensure
compliance with a COVID-19 vaccination policy; or
(b) setting out the precautions and procedures that the business or
organization must include in its COVID-19 vaccination policy.
Under these Regulations Chief Medical Officer of Health for Ontario issued Directive # 6 that is available here. This Directive was a cause for mass media information that the Government of Ontario imposed mandatory vaccination policy. Let's take a closer look at this.
As per this Directive, there is no mandatory vaccination required! This directive is saying that employee has 3 choices:
-to provide proof of vaccination;
- to provide medical exemption documents;
- to complete an educational session about the benefits of COVID-19 vaccination prior to declining vaccination for any reason except medical.
So, if the employee does not want to take a vaccine and does not have any medical conditions to claim exemption, he/she can simply complete an educational course and be exempt from the mandatory vaccination policy requirement no matter what. It is the role of the employer, the business, to ensure that the business does comply with the law.
As I said before, there is no law exists that is required people to undergo mandatory vaccination. And it is not an employer's role to demand mandatory vaccination. It is a Government who shall show the road and this Directive is an example how your workplace Policy shall looks like.
Wise employers shall follows this Directive and establish similar rules. Termination of employment because of the refusal to take a vaccine is a costly move, as employer may face a punitive damages claim on top of the termination pay that might be considerable on its own.
MANDATORY VACCINATION CHECK FOR CLIENTS AND VISITORS?
Ontario Regulations 645/21 (reopening Ontario (a flexible response to covid-19) Act, 2020 established rules for the businesses that are hosting public, like stores, café, restaurants. These regulations require each business to check the proof of vaccination of their visitors.
However, these Regulations do apply only to indoor areas at all! If the restaurant has an outdoor setting, a vaccination proof check is not required. It is also interesting, that there is a long list of exemptions exist that allow people to enter indoor premises without proof of vaccination. For example, if:
-the sole purpose of the visit is to use a washroom, or
- to make a retail purchase or
- to pay for the order, or
- to purchase admission and so on.
Such formulation allows almost everyone to enter the premises without vaccination. If you are still not believing to what you are reading, you may continue to read the Regulations itself.
So, generally speaking, businesses do require to perform a vaccination check reasonably, after careful reading of the Regulations.
Whether you have a claim to the store that checked your vaccination status before you enter to make your retail purchase? This is a great question for your legal professional.