During the fourth wave of the COVID-19 pandemic during fall 2021, the government of Ontario introduced strict measures to avert the spread of the virus, including a mandatory vaccination for persons working in several fields paired with a suspension without pay for those who refused vaccination.
These measures remained in force until 20 June 2022, when the government uplifted time by reason of the changed circumstances of the health emergency. Yet, an association of transportation workers had already challenged the constitutionality of these measures, specifically that of the suspension without pay of people who refused to get vaccinated, claiming that it violates the rights to life, liberty and security of persons as enshrined in Article 7 of the Canadian Charter of Rights and Freedoms.
On 5 July 2022, the Superior Court of Ontario dismissed the claim and found that the mandatory vaccination regime imposed by the federal government is constitutional as restrictions imposed upon the fundamental rights enshrined in the Charter are reasonable and justifiable.
From a factual perspective, the Court first considered that vaccination is a public health measure imposed in the public interest and, especially in the transport sector, it has proven effective in preventing the spread of the virus as well as serious health problems.
From a legal perspective, the Court considered that the restrictions imposed on the fundamental freedoms enshrined in the Charter were reasonable in light of the exceptional nature of COVID-19. To corroborate its findings, the Court applied a 4-criteria test, as established in its case law. It found that: first, such measures were enacted in pursuit of “urgent and essential” policy goals; second, there is a rational relationship between the public health goal and mandatory vaccination; third, mandatory vaccination, as established by the Federal government, constituted the least intrusive measure to achieve the goal since measures such as masks and social distancing do not provide sustainable immune protection and, more importantly, exceptions were provided for people with demonstrated clinical conditions, as well as for those having sincere religious believes against vaccination; and finally, its beneficial effects outweigh its harmful effects, since the hospitalization rate was 25 times higher among non-vaccinated population at the time the government imposed the measure.
