sevendigits wrote: ↑Thu Aug 26, 2021 6:14 pm
Constitutional lawyer Rocco Galati has indicated that the Supreme Court of Canada has already ruled that any medical treatment, including vaccination, without the informed consent of the individual, is unconstitutional. Galati also states:
• If your employment is already in progress, it is illegal for an employer to impose a new condition not included in the employment contract.
• If your employer terminates your employment as a result of your decision to refuse this experimental medical treatment, they could be held responsible for unfair dismissal or other breaches of the contract.
• If you sign an employment contract agreeing to be vaccinated with the COVID vaccine as a condition of employment, the employer may have the legal right to fire you without compensation.
• The Center for Constitutional Rights believes that compulsory vaccination in all employment settings is illegal, unconstitutional and unenforceable.
• If your employment, registration, or service is unlawfully terminated due to your refusal to accept experimental injection, you are advised to take legal action for wrongful termination or breach of contract.
“We need to stop thinking about getting an exemption for violating our constitutional rights. We have the constitutional right to refuse a vaccine. Those who try to coerce and impose the vaccine violate this common, statutory and constitutional right. Why ask for an “exemption” FROM OFFENDERS? It makes no sense. "- Rocco Galati, constitutional lawyer
Duelling opinions?
WITHOUT PREJUDICE
August 19, 2021
Mr. Wesley Lesosky
Component President
Air Canada Component of CUPE 25 Belfield Road
Etobicoke ON M9W 1E8
RE: MANDATORY VACCINES FOR FLIGHT ATTENDANTS
The following is a legal opinion jointly addressed to each of you as Presidents of your respective bargaining units. It has been requested, as I understand it, as a result of your joint collaboration on the issues discussed below.
Kindly accept this letter as constituting our opinion as to whether the Government of Canada can impose a vaccine mandate on flight attendants working under collective agreements with Air Canada, Air Canada Rouge or Jazz.
You specifically asked us to consider whether there are any legal avenues for flight attendants to challenge the upcoming vaccine mandate with any realistic chance of success, and whether there are any protection mechanisms in place for members who receive the vaccine and experience corresponding medical complications.
In researching and drafting our opinion, we considered the information you provided to us during our recent phone conversations, as well as materials from a number of other sources, including relevant case law and the recent announcements from the Federal government. This letter constitutes a summary of our findings and our opinion.
In brief, subject to the anticipated legislation, regulation(s), or ministerial order(s) which have yet to be released, we conclude that a challenge to the Federal Government’s vaccine mandate, in whatever avenues and forums it may be brought, is unlikely to succeed for the reasons that follow.
Background
Last week, the Federal Government announced its intent to require all federal public servants be vaccinated as early as the end of September. The Government also said it expects all employers in federally regulated sectors and Crown corporations to follow suit.
This is not a recommendation. Transport Minister Omar Alghabra confirmed that workers in federally regulated air, rail, and marine transportation sectors will have to be vaccinated by the end of October. The Intergovernmental Affairs Minister Dominic LeBlanc added that all public servants and some employees in federally regulated sectors must comply with the mandate or “risk losing their jobs.”
The Government announced its plan to engage with bargaining agents and employers during the mandate’s implementation. Everything about this process is unclear and up in the air for now. However, the Government stated that it will include “determining how the mandate will be implemented, through confirmation of COVID-19 vaccination and other means of protection.” There is no guarantee that the government will listen to either the employers or unions on this issue.
The Government confirmed that testing and screening measures will be put in place for those who cannot be vaccinated for medical reasons.
So far, these are only announcements by the Government. Details of the mandate and its implementation remain unclear until legislation or regulations are released. Our answer is subject to change accordingly.
Conclusion
Subject to the legislation, regulation(s), or order(s) which have yet to be released, we conclude that an appropriately drafted mandatory vaccine policy is very likely to hold up to any legal challenges. There are significant procedural and substantive hurdles to bringing a successful legal challenge given that the Federal Government has the authority to legislate federal workplaces. Meanwhile, the prevalence of the Delta variant and recent rise in case numbers provide strong justification for some form of vaccine mandate to prevent employees and the general public from contracting and spreading COVID-19.
With respect to employees who have an adverse reaction to the vaccine, the Federal Government recently launched the Vaccine Injury Support program to provide financial support to those who experience a no-fault “serious and permanent injury” after receiving a vaccine. For employees with short-term injuries, it seems likely that an adverse reaction may be compensable under workers’ compensation regimes if the worker was vaccinated after being required to do so by their employer as a condition of continued employment.
Discussion
One of the most common objections to mandatory vaccination policies relate to the doctrine of informed consent and the right to be free from coerced medical treatment. In Canada, these rights are captured under section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the life, liberty, and personal security of all Canadians.
While it is true that the broad liberty interests of unvaccinated individuals are affected by instituting employment vaccine requirements and by the privacy intrusion of being required to disclose vaccination status, these rights are not absolute. Section 1 of the Charter states that all of its rights can be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Similar mandatory vaccine mandates already exist in some Canadian jurisdictions. For instance, in Ontario, schoolchildren are required to provide proof of vaccination to attend school, where health and safety considerations take precedence over section 7 rights on the basis that the infringement is a justified response to the risk.
Mandatory vaccine policies have also been upheld in healthcare workplaces in the context of the seasonal flu vaccine, where arbitrators have concluded that the employer’s interest in workplace safety in high risk workplaces outweighs the corresponding violation of employee rights.
In the case of the upcoming COVID-19 vaccine mandate, in all likelihood, the Government will be able to justify an invasion of section 7 rights on the basis that the vaccine mandate is reasonable and “demonstrably justified” due to the public safety threat of COVID-19. After all, COVID-19 is much more infectious and deadlier than the seasonal flu, with evidence that the vaccine is 95% effective—a stark difference when compared to the seasonal flu vaccine, which ranges between 40%-60% effectiveness.
Further, the Government will have an easier time justifying mandatory vaccines in high risk sectors such air transportation, and especially for flight attendants, who work in confined spaces for prolonged periods of time, without the possibility for social distancing, and who are in close, frequent contact with members of the public (passengers).
In any event, there are two important caveats that may limit the Government’s powers with respect to any mandatory vaccine legislation, regulation(s), or order(s).
The first caveat is that the Government will not be permitted to force employees to be vaccinated against their will, but rather, to impose restrictions on employees who refuse the vaccine. Unfortunately, the restrictions that the government intends to impose appear to include either dismissing employees who refuse the vaccine or placing them on an unpaid leave of absence until they become vaccinated or the pandemic is contained.
The second caveat is that the mandate must accommodate employees who cannot comply because of protected grounds under human rights legislation. As stated above, the Government plans to accommodate those who cannot be vaccinated for medical reasons through additional testing and screening measures. Presumably, this also includes employees who cannot be vaccinated due to sincerely held religious beliefs.
It is unclear at this point whether the Government’s mandate will provide for similar accommodations for individuals who are unwilling or “vaccine hesitant.” The latest messaging from the Government suggests they will not be offered any accommodations and would be subject to termination or being withheld from service. Once again, we are of the opinion that a Government mandate requiring the unwilling or the vaccine hesitant to be vaccinated in order to attend work would not be deemed unconstitutional.
In terms of the lawfulness of any company policy, no airline has yet produced a policy on mandatory vaccination and, therefore, we are unable to provide specific commentary. However, it is our opinion that a mandatory vaccination – provided it contemplates accommodations for those with bona fide medical or religious beliefs – will also likely be upheld as lawful as a reasonable exercise of management rights (consistent with principles annunciated in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co) on similar grounds as the Federal Government’s mandate. A recent arbitration (Ellis Don) decision has strongly endorsed this approach in denying a grievance filed against a compulsory Rapid COVID-19 Antigen Screening Program. That decision will very likely be followed in future decisions.
To be clear, we do not believe that any challenge to the Government’s vaccine mandate as it applies to flight attendants will be successful. This includes any challenge before the courts, human rights tribunals, or arbitration boards, and it applies to all flight attendants save and except those who meet the very limited exceptions referred to above. As stated above, we need to see the actual wording of the order(s) to comment any further as to the options and consequences available to those flight attendants who meet the exceptions and any criteria associated with such.
There are also a number of other points that can be made including but not limited to the following: If a flight attendant refuses to be fully vaccinated she may be terminated by her employer. Absent a legitimate reason for refusing to become fully vaccinated (i.e. medical or religious reasons), a flight attendant will be required to comply with the airline’s directives (which are essentially the Government’s directives). If s/he does not comply s/he will like face disciplinary consequences – likely dismissal. If so, while the Union may try to reverse such via the grievance and arbitration procedure, we think the likelihood of success in those circumstances would be very slim.
We also point out that any challenge to any body (whether it be a court, human rights tribunal or arbitration) involves a lot of work, effort, resources, expense and time. Given that the mandate is expected to become enforceable within the next ten weeks, there is no realistic expectation of receiving a decision on any challenge before that point in time (likely much longer afterwards in fact). The clock will likely “out race” any challenge in this case.
Additionally, the chance of obtaining a temporary order to halt the requirement for full mandatory vaccination (i.e. such as an injunction, stay or other such remedy) is even more difficult, uncertain, and unlikely. The test to obtain an injunction or a stay is a very high bar to meet. It is highly unlikely that any adjudicator would order an injunction or stay in these circumstances.
There is simply very little that unions can do to stop the effect and consequences of the Government’s decision in these circumstances.
In summary, we recommend that you do not expend any efforts trying to challenge the upcoming mandate. Rather, unions may wish to spend its time, efforts, and resources on trying to persuade the Government to make the mandate, terms, and consequences as reasonable and fair as possible. We recommend that your members—subject to those few who meet any human rights exceptions—be fully vaccinated as soon as possible. Otherwise, they will be risking their future employment.
Those few who suffer any significant adverse medical reactions to any of the vaccines because of the Government mandate may try to seek individual remedies under the above noted options or perhaps pursue civil action. The success of such will depend on the law and other specific facts yet to evolve. However, the mere possibility of a substantial adverse reaction by a very small group, if any, will not protect or relieve those flight attendants who are not yet fully vaccinated from becoming fully vaccinated by the deadline date. Again, this comment does not include those who will be found to be legitimately exempt under the rules to come. We expect that any flight attendant who wishes to claim an exemption will have the onus of proving that legitimate grounds for an exemption exists.
We are sorry that we could not give you a more positive opinion as to your chances to successfully challenge this new vaccine mandate. However, for the reasons above and many more (to say nothing of the politics at play, including the fact that some provincial governments are also moving in a similar direction) we urge you to recommend that your members comply with the Government’s upcoming vaccination mandate. Unions, airlines and their employees will have little choice but to accept the mandate in order to avoid different adverse consequences for all concerned.
In terms of your members, we believe that any flight attendants who do not comply with the new mandate without legitimate reasons will likely face significant discipline (if not discharge) which will likely not be reversed in the grievance and arbitration process.
We trust the foregoing is satisfactory. If you have any questions or concerns or if we can be of further assistance in this matter, please do not hesitate to contact the undersigned.
Michael A. Church
CaleyWray