COVID-19 vaccine requirements imposed by the Canadian government, the provinces, and individual employers have been the subjects of much controversy, uncertainty, and litigation. Now that the pandemic is entering a new phase, with the economy reopened and travel resuming, many of these so-called “vaccine mandates” are being lifted. Yet for many employers and their workforce across Canada, there still remain questions to be answered about the legality, feasibility, and functionality of these measures. We asked Amy Sherrard, a litigator and appellate lawyer at Lenczner Slaght to explain the legal justification for vaccine mandates, their future, and how businesses and workers alike can navigate the transition to “living with COVID” in the workplace.
What forms have vaccine mandates taken in Canada over the course of the pandemic, and what were the legal hurdles to or burdens of proof for their imposition? What exemptions have been permitted, and why?
It is important to clarify at the outset what we mean when we refer to a “vaccine mandate”. A true vaccine mandate would force or compel an individual to get vaccinated against COVID-19, resulting in fines or even penal sanctions for a failure to do so. These policies do not yet exist in Canada, although a fine system was contemplated (but abandoned) in Québec. Instead, what we have seen are policies put in place which restrict an individual’s ability to access services or engage in certain activities if they are not...
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