In a recent decision, the Ontario Superior Court of Justice ruled that Seneca College’s vaccine policy does not violate the Canadian Charter of Rights and Freedoms. However, this does not mean employers have the right to terminate unvaccinated workers for just cause. 

This lawsuit was initiated by two unvaccinated students who had to take leaves of absence because they could not comply with Seneca College’s vaccine policy. The school maintained that it has to protect the health and safety of students, employees and faculty members on the campuses.  According to the Ontario Occupational Health and Safety Act, an employer has a duty to maintain a healthy and safe workplace.  Also, the school’s vaccine policy does provide exemptions based on the Ontario Human Rights Code.  However, unvaccinated students, in this case, cannot attend in-person classes for the final year of their education programs.  Considering competing interests from parties, Justice Black eventually decided that “the public interest in minimizing the risk and consequences of COVID-19 by requiring attendees at Seneca’s campus to show proof of vaccination substantially outweighs the interest of the applicants in avoiding the vaccinations in question.”  

Nevertheless, this decision does not suggest employers have the right to terminate unvaccinated workers for just cause. Recent case law affirms that “just cause” has a high bar – it requires an employer to prove an employee’s misconduct is willful and “incompatible with the fundamental terms of the employment relationship.” If an employer wants to terminate an employee who refuses to get vaccinated, the best course of action is to provide an appropriate severance package. Without a proper severance package, workers may claim wrongful dismissal and human rights violations. 

To better understand your workplace rights and explore the viability of a potential claim, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information on what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

Author: Luna Li