1 week Ago By [email protected] (Ed Canning)
Danny worked for a private health-care company in the GTA. When he got notice from his employer that vaccination for the COVID-19 virus was mandatory by a certain date, he objected. First, he sent an email to the employer outlining concerns about privacy, informed consent, genetic tests and the safety and efficacy of the vaccine.
He wanted the employer to assure him in writing that it would accept liability if he did get vaccinated and suffered adverse affects. A few weeks later, he wrote indicating that “the COVID-19 vaccine goes against my beliefs and I think it is unfair that I am being threatened with termination if I do not comply with injecting this vaccine.” Danny continued to refuse and eventually was terminated.
He filed a complaint with the Ontario Human Rights Tribunal, indicating his right to be free from discrimination on the basis of disability and his creed had been violated. He also indicated that he was terminated because of his association with other people that objected to vaccination. The Human Rights Code says you cannot discriminate against somebody because they have a relationship, association or dealings with a person or people identified by a prohibited ground of discrimination.
Being opposed to vaccination is not a prohibited ground of discrimination under the code, and Danny was not successful with this argument. Danny also claimed he had suffered from discrimination based on a disability. He said the unreasonable demand by the employer for vaccination caused him anxiety and mental suffering.
Unfortunately, that argument put the cart before the horse. In order for somebody to be guilty of discrimination on the basis of disability, the disability has to exist and the employer needs to be aware of it. Danny was complaining because the policy caused a disability, not the other way around.
This ground of the claim was dismissed. “Creed” is often understood by the courts to mean religious beliefs and practices, but it can also include non-religious belief systems that substantially influence a person’s identity, world view and way of life. Danny may have had an argument based on “creed,” but we will never know.
In order to allege that somebody has discriminated against you, you need to have told them, or they need to know, about what the prohibited ground is and ask for an accommodation. Danny had indicated that the vaccine went against his beliefs, but that is all. He did not claim it violated his creed and he did not ask for an accommodation.
The employer was never required to determine whether Danny’s creed was involved and whether an accommodation was possible because Danny had never alerted them to that issue. Danny also lost on this last part of his claim. If he had raised his creed at the beginning, the employer — and later the Ontario Human Rights Tribunal — would have considered a number of factors: Was the belief sincerely, freely and deeply held? Was it integrally linked to Danny’s self-definition and spiritual fulfilment? Was it a comprehensive and overarching system of belief that governed Danny’s conduct and practices? Did it address ultimate questions of human existence including ideas about life, purpose, death and the existence or non-existence of a creator and/or a higher or different order of existence? Did it have a relationship or connection to an organization or community that professes a shared system of belief? Danny would not have had to have passed all of these tests, but all of these questions would have been on the table.
A singular belief, however, would not likely have been found to be a creed..
