Action4Canada - January 17, 2022


Employee Rights & The Covid-19 Vaccine

Empowering Businesses to Stay Open Pursuant to Charter Rights and Freedoms A4C Is A Ray Of Hope In The Darkness

Episode Stats


Length

9 minutes

Words per minute

124.53

Word count

1,121

Sentence count

51

Harmful content

Hate speech

1

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

Rocco Gagni, Executive Director of the Constitutional Rights Centre in Toronto, gives a brief overview of mandatory vaccinations in the employment context in Canada. In the context of the law of contract, is it illegal to require vaccinations as part of a contract? And what would happen if you were fired for refusing to sign a contract that required you to be vaccinated?

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
00:00:00.000 Hi, my name is Rocco Galati, I'm the Executive Director of the Constitutional Rights Centre
00:00:11.880 in Toronto.
00:00:12.880 I've been asked to give a very brief overview of the issue of potential mandatory vaccinations
00:00:22.360 in the employment context in Canada.
00:00:26.840 In very broad strokes, our legal order has been described by the Supreme Court of Canada
00:00:33.320 as a normative legal order.
00:00:35.680 That is, all relationships in Canada are governed by the rule of law and law.
00:00:41.520 In very broad strokes, there's only two types of law in our system.
00:00:46.400 There's public law, which includes such law as criminal law, regulatory law, administrative
00:00:52.000 law and other public law, which governs the relationship between the state, the governments,
00:00:59.960 and the citizen.
00:01:02.000 On the other side, there's what we call private law.
00:01:05.640 And the private law governs the relationship as between private citizens.
00:01:10.980 And there's only two broad types of law in private law.
00:01:15.160 You have contract as between individuals.
00:01:18.220 And tort.
00:01:19.560 So contract governs your obligations and promises when two minds meet, when you both come to
00:01:27.480 an agreement.
00:01:28.740 Tort governs the consequences of your conduct when you do something that harms someone else.
00:01:36.920 In that context, and in the context of mandatory vaccinations, in Canada, any treatment, medical
00:01:50.640 treatment including vaccination without the informed consent of the citizen is unconstitutional.
00:01:58.820 The Supreme Court of Canada has already ruled this.
00:02:02.480 And so with respect to government action, if any government body tried to impose mandatory
00:02:10.220 vaccinations, it's unconstitutional.
00:02:12.780 So in the employment context, if you work for a level of government, any form of government,
00:02:20.480 and they tried to impose mandatory vaccinations, that would be unconstitutional.
00:02:25.820 Whether it's imposed through collective bargaining, or whether it's imposed for the first time
00:02:33.360 during the course of a contract.
00:02:35.500 In the private context, it's a bit more nuanced and complicated.
00:02:39.240 But at the end of the day, the Constitutional Rights Center arrives at the same conclusion.
00:02:44.940 In a private context, if you sign a contract agreeing to be vaccinated as part of your employment,
00:02:52.480 then the employer does have a basis to say, well, if you don't, once you sign that contract,
00:02:58.240 if you don't adhere to being vaccinated, that they can dismiss you.
00:03:02.340 If your contract is already underway and you're employed, and they try to parachute that provision
00:03:11.140 of now having for the first time after you sign the contract without a vaccination proviso,
00:03:17.400 try to impose that, well, they can't do that.
00:03:20.400 And if they fired you for it, that will constitute wrongful dismissal, and you can sue your employer
00:03:26.960 for that.
00:03:27.860 We at the Constitutional Rights Center are of the legal opinion that trying to impose mandatory
00:03:34.220 vaccination in even the private employment contract is not allowed.
00:03:46.780 Strictly speaking, the charter only applies to government actions.
00:03:50.100 And so if you're a government employee, you can invoke the charter.
00:03:53.780 It does not apply to private relationships of contract and tort, except that the Supreme
00:04:00.880 Court of Canada has held that even where the charter does not strictly apply, charter values
00:04:07.720 apply.
00:04:08.880 And the Supreme Court of Canada has also held that the common law that's enforced by the
00:04:13.660 judges of our country, is also subject to constitutional and charter scrutiny.
00:04:21.000 So, taken in the context of the law of contract, it's the view of the Constitutional Rights Center
00:04:31.220 that to violate on a private basis what, if it had been violated by public authorities, would
00:04:41.580 constitute a constitutional violation.
00:04:44.420 Then that part of the contract, in our view, is not enforceable because it's unconscionable,
00:04:50.780 a common law.
00:04:51.520 There's a doctrine of conscionability, even in a contract, that if a proviso shocks the conscience
00:04:59.100 for some reason, pursuant to public policy, it's not enforceable.
00:05:06.480 It's our view that to do something that would otherwise violate your constitutional rights if
00:05:12.900 the state had done it, would be an unconscionable provision in the contract.
00:05:17.640 Furthermore, any court that would enforce a provision that otherwise would constitute a
00:05:26.540 constitutional violation of medical treatment without informed consent, that court judgment
00:05:33.560 or the common law of contract in enforcing such a provision would also violate the charter.
00:05:39.780 At the end of the day, it's the view of the Constitutional Rights Center that any way you cut it,
00:05:45.260 mandatory vaccination in all employment contexts would be unconstitutional and or illegal and
00:05:54.800 unenforceable.
00:05:55.620 Of course, if you get fired in a private context, then your only remedy is to sue for wrongful dismissal.
00:06:04.580 What would happen if you took the vaccine, you agreed to the vaccine, and you got injured?
00:06:17.940 Could you sue your employer?
00:06:20.180 And the likely answer is you could, but you may not succeed because at the end of the day,
00:06:24.360 you've agreed.
00:06:25.000 What you can do is get your employer to acknowledge that you're taking it even though you do not
00:06:32.560 wish to take it, and if there's any side effects or damage to you, that the employer acknowledges
00:06:39.480 that they will be strictly liable to compensate you for any such physical or neurological damage
00:06:45.480 from the vaccine.
00:06:46.320 There are those who say, no way, I don't want this vaccine, I'm not going to take it, period.
00:06:52.780 So that is not a choice.
00:06:55.140 I would, I've never, I would advise somebody to do something they don't want.
00:07:00.020 But if they're concerned, they would do it, but they're concerned in the event of an eventuality,
00:07:06.840 then they can mitigate that eventuality.
00:07:09.040 But it still has to be basically consensual with the proviso.
00:07:13.780 Well, if mandatory vaccines are imposed on all Canadians, both children and adults,
00:07:27.940 we can go and get an injunction under the July 6, 2020 challenge that we filed with respect
00:07:37.420 to the COVID measures.
00:07:40.100 If they're only imposed with respect to children, then we can bring an injunction on both the
00:07:49.180 2020 July 6 challenge, but as well we can bring an injunction with respect to the 2019 challenge
00:08:01.240 that strictly deals with children in the school system.
00:08:31.240 Or even if they're likely to struggle with respect to children in the way, any of these
00:08:33.020 are most devamers that are sold to them in the past.
00:08:34.860 It's over the last month we can hit ошибочang and it's calcutative injuries
00:08:36.960 after this month we've also had a Germans-Challłu d'O Bring it around. 0.97
00:08:39.120 The end of this week is a panic in the future and it's сод- Mizelina.
00:08:42.520 We're going to send señal out to thewhen local singers in the future and the
00:08:44.140 number one increases if they run the future for a fourth year.
00:08:47.100 Let's stop casting for the last year.
00:08:48.660 The third year took advantage of inflation our study.
00:08:51.020 There are determined by the opposite side effects almost as if they were able to sacrifice