Canadians have a right to life, liberty, and security of the person, according to employment lawyer
Earlier this month, Quebec made the divisive move to implement a health care tax on unvaccinated citizens. The decision, as predicted, was a polarizing one – with many protesters claiming it infringes on their human rights and supporters comparing it to taxes on sugar and tobacco. After the news emerged, Ontario Premier Doug Ford was quick to say that his government wouldn’t be taking the same route – however he also took the opportunity to implore Ontarians to get the jabs and protect their loved ones.
Despite Ford’s promises, employers and employees across Ontario are collectively wondering whether or not the province will be forced to implement a similar rule. And, if so, what exactly would that rule look like and how would it be rolled out? HRD spoke with Jonathan Borrelli, employment lawyer at Keyser Mason Ball LLP, who revealed what implementing this law in Ontario would entail – and the challenges it would present for employers.
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“Any provincial government would have to expect a court challenge if they were to pass, implement, and collect such a tax,” Borrelli told HRD. “I think it would be inevitable. Canada’s Charter of Rights is clear: Canadians have a right to life, liberty, and security of the person. The Charter protects personal security, so a government appearing to punish those who would not agree to the vaccine would risk a Charter challenge. The government could choose override the charter using the ‘Notwithstanding Clause’ but that is a rare move and the Quebec government has not indicated it would do so.
“In Ontario, as it applies to employment law, the government has shied away from implementing such a policy or encouraging employers to do the same. The government has currently moved the burden of implementing restrictions to employers, business owners, and individual themselves. As it stands now, more labour arbitrators in Ontario are upholding mandatory vaccination policies in a variety of employment settings, not only in high-risk settings. So, it may be unnecessary for the government to pass such policies. Lawyers, employers, and the rest of society are patiently waiting when the mandatory vaccination policies are scrutinized by the court and the Human Rights Tribunal.”
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In Quebec, around 10% of citizens remain unvaccinated – however, they also make up around 50% of patients using intensive care unit beds, according to Quebec Premier Francois Legault. The move, to tax the unvaxxed, has already increased vaccine uptakes with 7,000 people registering for their first dose shortly after the announcement. Whether or not Ontario is poised for the same seems unlikely – however all eyes will be on Quebec to see how the controversial new rule plays out – and its ultimate ramifications for the rest of Canada.
“Federal and regional governments around the world have been using the ‘carrot’ approach to incentivize and encourage their citizens to protect themselves and their community from the spread of COVID-19,” Angela Champ, SVP HR at Alpine Building Maintenance, told HRD. “However, with a still-too-large population unvaccinated, COVID-19 is mutating and spreading and so governments are moving to a ‘stick’ approach instead. We need to do our part to reduce the burden on employees who pick up the extra work when their colleagues are off sick, to reduce the impact that having people off has on the economy in general, and to protect our health-care workers.”
