Rocco Galati, Executive Director of the Constitutional Rights Centre, discusses vaccine mandates in the context of law and the workplace in his YouTube video, Your Rights to decline a Vaccine in the context of Employment. We have transcribed the video which can be read below.
Our legal order has been described by the supreme court of Canada as a “Normative Legal Order”, that is all relationships in Canada are governed by the rule of law. In very broad strokes there are only two types of law in our system. There is Public Law which includes criminal law, regulatory law, administrative law, and other public law which governs the relationship between the government and the citizen.
On the other side there is Private Law, and the private law governs the relationship as between private citizens and there are only two broad types of law in private law, Contract law (between individuals) and Torte. Contract governs your obligations and promises when two minds meet, when you both come to an agreement. Torte governs the consequences of your conduct when you do something that harms someone else.
What if I’m told I must take the vaccine in order to work at my job?
It that context, and in the context of mandatory vaccinations, in Canada, any medical treatment, including vaccination, without the informed consent of the citizen is unconstitutional. The supreme court of Canada has already ruled this. And so with respect to government action, if any government body tried to impose mandatory vaccinations, it’s unconstitutional. In the employment context, if you work for a level of government, any form of government, and they try to impose mandatory vaccinations, that would be unconstitutional. Whether it’s imposed through collective bargaining or whether it’s imposed for the first time in the course of a contract.
In the private context it’s a bit more nuanced and complicated but at the end of the day the Constitutional Rights Centre arrives at the same conclusion. In a private context, if you sign a contract agreeing to be vaccinated as part of your employment then the employer does have a basis to say, once you’ve signed that contract, if you don’t adhere to being vaccinated then they can dismiss you.
If your contract is already underway and your employed and they try to parachute that provision of now having for the first time after you signed the contract without a vaccination proviso, try to impose that, they can’t do that. And if they fired you for that, that would constitute wrongful dismissal and you could sue your employer for that.
CRC is of the legal opinion that trying to impose mandatory vaccination in even the private contract employment is not allowed.
Can I invoke my Charter Rights?
Strictly speaking the Charter only applies to government action, so if you are a government employee, you can invoke the Charter. It does not apply to private relationships of contract and torte. Except that the Supreme Court of Canada has held that even where the Charter does not strictly apply, Charter values apply. And the Supreme Court of Canada has also held that the Common Law that’s enforced by the judges of our country is also subject to Constitutional and Charter scrutiny.
Taken in the context of the law of contract, it’s the view of the Constitutional Rights Centre that to violate on a private basis, what if had been violated by public authorities would constitute a constitutional violation. Then that part of the contract in our view is not enforceable because it is unconscionable at Common Law. There is a doctrine of conscionability even in a contract that if a proviso shocks the conscious for some reason, pursuant to public policy, it’s not enforceable. It’s our view that, to do something that would otherwise violate your constitutional rights if the state had done it, would be an unconscionable provision in the contract.
Furthermore, any court that would enforce a provision that otherwise would constitute a constitutional violation of a medical treatment without informed consent, that court judgement where the common law of contract in enforcing such a provision, would also violate the Charter. At the end of the day, it’s the view of the Constitutional Rights Centre that anyway you cut it mandatory vaccination in all employment contexts would be unconstitutional and/or illegal and unenforceable. Of course if you get fired in the private context, then your only remedy is to sue for wrongful dismissal.
What if I take the vaccine just to keep my job?
What would happen if you took the vaccine, you agreed to take the vaccine and you got injured, could you sue your employer? The likely answer is, you could, but you might not succeed because at the end of the day, you’ve agreed. What you can do, is get your employer to acknowledge that you are taking it even though you do not wish to take it and if there are any side effects or damage to you that the employer acknowledges that they will be strictly liable to compensate you for any physical or neurological damage from the vaccine.
There are those who say, No way, I don’t want this vaccine, I’m not going to take it period, so that is not a choice. I would never advise someone to do something they don’t want. But if they were concerned, they would do it but they are concerned in the event of an eventuality then they can mitigate that eventuality. But it still has to be consensual with the proviso.
Could we file an injunction if schools make the Covid-19 vaccine mandatory for children?
If mandatory vaccines are imposed on all Canadians, both children and adults, we can go and get an injunction under the July 6th, 2020 challenge where we file in respect to the Covid measures. If they are only imposing with respect to children, then we can bring an injunction on both the July 6th, 2020 challenge, but as well we can bring an injunction with respect to the 2019 challenge that strictly deals with children in the school system.