Proponents of vaccine mandates and pursuers of the “COVID zero” impossible dream have effectively depicted those opposed as wingnut conspiracy theorists.
Yet at our boutique Ottawa law firm, where we focus on human rights and charter litigation, we are inundated with calls for legal help on vaccine mandates. They come from Canadians in all walks of life. We’ve never seen anything like it. We know other law firms are getting such calls as well.
The vast majority are from nurses, physicians, civil servants, teachers, and university students. Given their roles and responsibilities, if they are all wingnuts, we have an even bigger problem in Canada than COVID presents.
In fact, they are educated, intelligent people with thoughtful reasons for not wanting this vaccine at this time. They are reasonable people willing to mask, self-screen for symptoms, and take rapid antigen tests before arriving onsite. They are willing to accept reasonable accommodation, which used to be central to human rights law in Canada.
Curiously, even weirdly, no one is paying attention to them other than to threaten professional and personal punishment. Think about that, especially in the case of medical professionals.
If 15 percent of stockbrokers suddenly dumped a stock from their portfolios, wouldn’t people wonder what they know? Of course they would. So why are we not asking why so many health-care workers are vaccine-hesitant? Do they know something we don’t? Do they see in their work something we’re not aware of or the media is not covering?
When so many people in a specialized sector reject a public narrative, we must pay attention. It’s foolish to dismiss them as crazy conspiracy theorists.
The problem we face as lawyers is that the injustice people who don’t wish to be vaccinated are encountering is best resolved through politics, not litigation. It’s true some lawyers have made bold public pronouncements about the illegality of workplace vaccine policies or government mandates. We would never question their motives without further evidence. But an unfortunate side effect of such pronouncements is they can mislead people with strong feelings that the mandates are unjust and unjustified into believing there is a clear one-size-fit-all legal solution, when right now there isn’t.
In our practice, we’d love to be able to confidently tell our vaccine-hesitant callers facing job loss or expulsion from university that they have a slam-dunk legal case. Sadly, we doubt relief for those whose jobs are on the line will come from the courts, or at least that it will come soon enough.
Certainly, important legal principles support those who believe government and employers should not compel workers to inject any substance into their bodies. The people who call us have done their jobs well for months. Their employers apparently believed it was safe for them to work even before vaccination and rapid testing were readily available. These people should not now be fired.
But so many months of COVID-19 myopia by media, politicians, and government have made it far more difficult to win a case for workers’ autonomy rights and privacy interests. Yesterday’s health-care heroes are today’s public pariahs. It is a challenging narrative to change.
We’re seeing signs, though, that change lies in economics and politics rather than litigation. The Quebec government first walked back its vaccine mandate by delaying its enforcement, then abandoned it when thousands of nurses held the line, daring the government to take their jobs. Wiser political heads realized it would be absurd to cripple health care “for the sake of public health.”
The Quebec situation shows no employer can sacrifice a significant percentage of its workforce without suffering significant ill-effects. That’s why unions use strikes.
So what will it take for governments and employers to respect workers’ rights? It will take, as in Quebec, recognition that a substantial percentage of employees won’t bend to pressure from the public or politicians. Vaccine mandates can last only as long as people go along with them. Money talks, and the one thing companies fear more than COVID-19 or cancel culture is lost profits.
To reasonable and rational Canadians whose jobs are on the line for deciding not to be vaccinated now, take courage. You are not alone. Our anecdotal experience confirms there are many more of you than you realize.
Take a stand. If you get fired, you may have a case. You may be entitled to damages. That’s when you can pursue litigation. Meanwhile, your labour is your leverage. United, you are indispensable.
Albertos Polizogopoulos and John Sikkema are constitutional and human rights litigators at The Acacia Group (AcaciaGroup.ca), a law and strategic communications firm.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.