Kathleen Chevalier
“ Generally speaking , our courts have been reluctant to intrude on somebody ’ s person in the employment law sphere . We see that quite often with drug and alcohol testing . That ’ s something that through the years has been routinely challenged and routinely struck down by our courts in terms of imposing these types of tests . And , I mean , that ’ s just taking a swab of somebody ’ s saliva or a sample of urine ; that ’ s not putting something permanently into their bodies ,” says Chevalier . “ So , as you can imagine , applying that lens to it , you would think that this is something that ’ s unlikely to be upheld if an employer were to implement it .”
Chevalier acknowledges that there ’ s an obvious health and safety risk that favours vaccinations – and she personally hopes everyone who can get vaccinated chooses to do so – but ultimately thinks any vaccine mandate implemented by an employer would , if challenged , not be upheld in court .
When it comes to customers , the law does allow business owners to regulate who can and can ’ t enter their business . It also allows businesses to enforce reasonable grounds for denying service ( i . e . no shirt , no shoes , no service ). But here again , if discussing a proposed customer-focused vaccine mandate , the issue of health and safety versus human rights is key in the legal context . The law allows extraordinary health and safety concerns to trump other rights , and we ’ ve routinely seen that in many of the government-mandated measures during the pandemic , such as forbidding public gatherings . But does that argument legally hold up if , say , requiring customers to show proof of vaccination before entering a store ? After all , as Chevalier points out , Ontario ’ s Human Rights Code says that everybody is entitled to partake of your goods and services and if you choose to deny those to anybody , or otherwise
inhibit their ability to access them , it can ’ t be in a discriminatory manner .
“ Now the question becomes , is being unvaccinated a protected ground upon which somebody could claim that they have been punished or discriminated against ? That ’ s an interesting issue ,” she says . “ And so , if you ’ re a retailer and you think , ‘ Okay , I want to make sure everybody that ’ s accessing my store is vaccinated ,’ how do you do that ? We ’ ve heard about electronic vaccine passports , where you tap it or something . Sounds like great technology , but who knows what ’ s possible ? How would you demonstrate that ? How would you be sure that it ’ s authentic ? And again , from a discriminatory perspective , there ’ s people that can ’ t be vaccinated because they ’ re immunocompromised , or they ’ re otherwise unable to do it . Now you ’ ve basically told those people they can ’ t access your goods and services . So that ’ s a pretty problematic position from a legal perspective , I think .”
Thinking about what ’ s practical , Chevalier says that for retailers and other businesses , it would be easier and safer ( legally speaking ) to implement and enforce the existing COVID safety measures .
“ So , I think it again comes down to , if I ’ m a retailer , rather than implementing a policy that ’ s probably going to be pretty poorly received by a lot of people — although well received by some , I ’ m sure — you ’ re likely better to take a modified approach . Perhaps until COVID is done circulating , you continue with your mask-wearing policies , your sanitization policies , and continue with social distancing within the store environment or within the workplace ,” she says . “ Those are things that people are already used to doing . They don ’ t like them , but they ’ re used to it and it would be , I would think , a far less controversial stance , which would again get you nearly all of the way there .”
Chevalier also points out a key unanswered question about the vaccines themselves . That is , does being vaccinated mean you can ’ t transmit the virus to other people ? It ’ s not actually known yet if any if the available vaccines stop transmission of SARS-CoV-2 , which is the virus itself . They ’ re only proven to significantly reduce cases of COVID-19 , which is the disease caused by the virus . “ So , I think that is the crucial gating issue on this question , and only if you find that [ vaccinated people ] can ’ t transmit the virus do you have any basis at all for thinking about making the vaccine mandatory ,” Chevalier adds .
So , as things stand , there are a lot of unanswered questions , but it seems unlikely that a vaccine mandate directed at employees and / or customers would withstand a legal challenge in Canadian courts . And so , practically speaking , attempting it is likely not worth the hassle or controversy it would cause to any retail business owner . But these are still uncharted waters . Both Chevalier and Mallough say they and their colleagues are keeping a close eye on this issue as it unfolds . They both say that if a vaccine mandate were to be implemented and upheld by a court , it ’ s likely to come from a high-risk sector , such as healthcare , long-term care , or
even warehouses and manufacturing where COVID-19 outbreaks have occurred .
“ Ultimately , and something we ’ ve been asking governments this whole time , is how much of a concern is retail as an activity when it comes to COVID ? Is this something that retailers , based on the data , need to be concerned about ?” says Mallough . “ To date , it ’ s not something that we ’ ve seen as having been an issue , but governments across the country have not been great about really parsing out that data and sharing it . Rather , they include retail in blanket lockdowns , in our opinion , more to send a message to the public and say , ‘ Take this seriously , we ’ re closing stores ,’ as opposed to , ‘ We ’ re closing stores because you ’ re likely to catch something there .’”
Michael Raine is the Editor-in-Chief of Canadian Music Trade .
Ryan Mallough
CANADIAN MUSIC TRADE 29