Antivax 'liability notices' - Pseudolegal Nonsense

Something I've started hearing about - not through my own social media, legal research, or other means, but through multiple clients who have reached out to me and my firm for advice - is a series of "Notices of Liability" promulgated by a group called Action4Canada, supposedly in connection with an Ontario lawyer.

I won't link them. They were hard to find in my own Google searches based only on the verbal descriptions I'd gotten on the phone, and I'd prefer to keep it that way. They're apparently circulating in social media echo chambers among antivaxxers. (The organization's 'about' page contains such other alt-right pseudolegal hits like 'M103 limits speech' [it doesn't], highlights the work of its co-founder warning against "the extreme threat political Islam posed to Western nations", and notes that the "common thread" of their issues of concern is the "UN and a globalist cabal".)

But I'll speak to the contents of a couple of these documents. In a nutshell, they are full of scientific and legal misinformation and misleading claims, and serving them on organizations has absolutely no legal significance or impact. Except perhaps that, signing such a document and serving it on your employer may amount to disciplinable misconduct, up to and including just cause for termination.

(Note that the Action4Canada has a disclaimer on its website: Immediately after advising you to serve the notice on your employer, it says that it "accepts no responsibility or liability for any harms or losses that occur as result of delivering this notice. If you do not agree to these terms then please do not use this notice. We do not make any representations or warranties about the potential consequences of delivering this Notice of Liability". Without opining on the effectiveness of this disclaimer, take the message seriously that you should be prepared to face whatever consequences might flow from taking their advice. On that point, at least, I agree.)

There are several documents published on the A4C site, but I'll touch on the problems associated with a couple specific ones.

Document 1: Vaccine Notice of Liability

This five-page "notice" purports to be a document to provide to employers, business associations, "and the like", in response to "COVID-19 injections recommended or administered to employees", and calls itself "an official and personal Notice of Liability".

There's nothing 'official' about it.

Alleged Practice of Medicine

It starts out with an allegation that "You are unlawfully practicing medicine by prescribing, recommending, facilitating, advertising, mandating, incentivising, and using coercion to insist employees [get vaccinated]".

This is untrue and absurd - it's a sweeping and wrong definition of practice of medicine. In respect of vaccines, only their administration is a restricted activity under Alberta's health professions regulation, but even that's not necessarily the 'practice of medicine'; note that pharmacists and nurses are entitled to administer vaccines without requiring a physician's prescription or supervision. If I'm due for a booster for my MMR vaccine, I can walk into a public health office, meet with a nurse, and get the shot. No prescription or doctor's involvement is necessary.

So if I (with no status as any sort of health professional) am literally the one sticking the vaccine needle in your arm, I'm violating the law. But anything short of that? If I see someone step on a rusty nail, I'm going to recommend they get a tetanus shot if it's not up-to-date. I'll likely even facilitate that by driving them to a clinic. If I'm an employer of people in roles where they're likely to come into contact with blood, I'll likely require all my employees to be vaccinated for Hep B.  None of this is new, unusual, or even remotely within any restricted activity.

Furthermore, accusing your employer of illegal conduct - when it's not true and not within the scope of reprisal-protected legislation - is likely insolent and/or insubordinate.

Conspiracy Theories About COVID-19

The A4C document is largely premised on a denial that the pandemic is anything extraordinary, arguing that "we are experiencing a rate of infection consistent with a normal influenza season". Never mind that, for instance, Alberta's ICUs are filled to record levels, well into our surge capacity, despite having cancelled large numbers of scheduled surgeries.

Make no mistake: The document's premise is wrong, and based on the most transparently false conspiracy theories. It's also largely irrelevant to the larger point about legality and liability.

I find it at least a little ironic, though, that after claiming that vaccine recommendations are 'unlawfully practicing medicine', the document goes on to assert that the injection is "not required or recommended".

Pseudolegal Prohibition Arguments

One of the core allegations in the document is that the Nuremberg Code, which speaks to consent to experimental treatments, prohibits current vaccination programs because the authors assert that the vaccines meet some vague and unsourced definition (despite the document having 42 footnotes) of 'experimental', and therefore aren't actually 'vaccines' at all.

This is untrue for several reasons. Firstly, their contention that the vaccines are in clinical trials until 2023 is largely false. While this is complicated by the fact that there are MANY different vaccine candidates that have been tested or are being tested for various different uses, at different stages in many different countries, the common vaccines used in Canada have completed clinical trials in Canada and have received all approvals for most uses.

Moreover, even when we were relying on provisional emergency use approvals, that doesn't make their administration 'experimental' within any reasonable interpretation. That's simply not what the Nuremberg Code does or speaks to.

In any event, international law's impact on domestic Canadian law is...indirect. Even if an employer's actions violated the Nuremberg Code (which, I can't stress enough, vaccine mandates don't), that alone wouldn't be a basis for any sort of legal claim against the employer.

The document also cites the Crimes Against Humanity and War Crimes Act, which wouldn't prohibit anything about a vaccine requirement even on the most extraordinary imaginative leap, and the assault provisions of the Criminal Code, which would be engaged if I stuck a needle in your arm without your permission, but, importantly NOT by me refusing you access to my business or property because you declined to get stuck with a needle.

Similarly, there are citations to sections 216 and 217 of the Criminal Code which, frankly, I think the author of this document just doesn't understand: They govern scenarios where a person is carrying out or directing lawful but dangerous acts, and require those acts to be carried out properly and with due care. While the document interprets these sections as making it illegal "to endanger the life of another person", that's actually not a remotely accurate interpretation. Moreover, again, barring you from entry to my facility because you haven't gotten the jab simply doesn't engage anything close to these provisions.

There's also reference to the Genetic Non-Discrimination Act, which prohibits DNA/RNA testing for vetting for employment or other services. It's also nonsense, but I'll get to it below.

Safety and Efficacy of Vaccination

There's a lot of clutter in the document with claims regarding vaccine safety that are contrarian and broadly rejected by the medical scientific community, bluntly false, out-of-date, or otherwise misleading. And while, as noted, there are a lot of footnotes in the document, most of these references are not to reliable sources. While the body of the document talks about reports by official institutions like VAERS, the discussion is sourced and linked to antivax websites.

When you actually look at VAERS, or reliable summaries of the data from VAERS, what you find is, firstly, that raw numbers of post-vaccine adverse events tend to be dominated by brief non-serious reactions such as tingling or prickling; pain at the vaccination site; headache; itching, fatigue; etc. Serious events after the COVID vaccine, like death, life-threatening events, and hospitalizations are required to be reported to VAERS, regardless of whether or not the vaccine is suspected to be a factor in the event. Over the course of 10 months, more than 400 million doses have been administered in the United States; you simply cannot extrapolate causation from the fact that some 0.0021% of these doses were followed within a certain timeframe by the recipient dying.

Vaccination isn't 100% safe or 100% effective, and that's not a particularly controversial statement. Some people will have adverse effects. I had a sore arm for a couple of days after both shots. My wife spent a night feeling fatigued and feverish after one of them. These are real side effects of the vaccine. But serious effects are, if anything, rare. Plausible links have been established between the J&J vaccine and serious adverse events - but the occurrences are so extraordinarily rare that it's still not at all clear if there's actually a causal connection.

The A4C document inflates these risks and manufactures new ones that aren't supported by the evidence, while disputing efficacy evidence that is, at this point, pretty well-established.

But this is all largely irrelevant to the legal issues of whether or not an organization can implement a vaccine mandate.

If I own a business, I'm entitled to set all sorts of rules for who is allowed in or not. I can, in theory, exclude people on the basis that they wear crocs - not just whether they are currently wearing crocs, but whether they've EVER worn crocs. Or, conversely, I can require crocs as part of the dress code. That's not FORCING someone to wear crocs; they're completely free to simply not enter.

The same goes for employees. I'm not entitled to force a croc onto somebody's foot, but I'm perfectly entitled - subject to possible contract claims - to bar someone from entry without them.

COVID vaccines are similar. Efficacy and safety - while the science strongly supports both - are relevant to larger policy questions of whether vaccine mandates should be imposed, but not usually to whether they can be. (Unionized environments differ in this respect somewhat...however, this 'notice' is even less apropos of union settings than others.)

Voluntariness of Vaccination

The last page of the A4C document tries to assert a general rule that any requirement for vaccination, imposed by government or private organizations, would be impermissible.

There are a few things to be said about this.

Firstly, nobody's holding down people to inject them against their will. That would raise a much more significant specter of Charter issues. But with extraordinarily narrow exceptions (which I've discussed in prior entries), denial of services or employment for being unvaccinated doesn't offend any constitutional or human rights regime.

Secondly, the closest thing this document says to anything that's accurate is that an employer who dismisses an employee for refusing to get vaccinated may face a wrongful dismissal action. I think that may be accurate in some cases, but not 100%, and in any event a wrongful dismissal is (by definition) merely a breach of contract for failing to give appropriate notice. An employee might be entitled to damages for not having received that notice. It's not going to be a windfall. And it doesn't require any sort of pseudolegal 'notice' to be given by the employee in advance.

Thirdly, let's be clear: Vaccination status is not a prohibited ground of discrimination under the Charter or Human Rights legislation. There can be cases where it might be tied to a prohibited ground, but those cases are extraordinarily rare. So a ban might, where reasonable, require accommodation for people whose unvaccinated status is legitimately tied to a prohibited ground of discrimination, but the mere existence of a possible scenario doesn't render the ban altogether illegal. Put another way, just because my co-worker may not be medically able to lift more than 5kg doesn't mean the employer can't ask me to do such lifting. And if I do have such a limitation myself, I'm required to make my employer aware of those circumstances, along with such other information about it that my employer might reasonably require, and work with the employer toward accommodations. This notice doesn't even begin to start that ball rolling.

Fourthly, private sector employers and other organizations aren't required to respect Charter rights; the Charter is a document that constrains government action. "I have a Charter right against being searched" is no defence to a store policy that bars me from entry unless I agree to have my bag searched upon exit. So while there could conceivably be a scenario where private organizations' decisions not to serve the unvaccinated might become actually coercive, imposing meaningful hardship upon an unvaccinated person (see below), that wouldn't amount to a constitutional issue at all. Giving a private organization a document that claims that the Charter requires them to let you do something...is ALWAYS nonsense.

Fifthly, even if government vaccination policy was coercive, it's not automatically unconstitutional on that basis: Let's accept, for the sake of argument, that some degree of coercion would offend Charter rights - if the government, for instance, prohibited you from going into a medical clinic to seek treatment for something unless you're vaccinated, that might conceivably infringe s.7 rights. If the government mandated vaccination for attendance at church, that would likely infringe s.2 rights.

But the infringement itself isn't the end of the analysis, because these rights are all subject to 'reasonable limits', meaning that the government could potentially justify the infringement. Most of us lawyers think that courts will extend a fair bit of deference to governments on pandemic policy-making, in terms of this analysis.

Beyond that, of course, governments can also invoke a legislative override to pass these laws notwithstanding the Charter rights potentially infringed.

While there are specific pandemic-related policies that may raise litigable constitutional issues, the solution to that is to take the government to court to litigate those issues. There's simply no meat to a blanket statement that vaccine mandates are generally illegal and unconstitutional, and trying to insist that an organization violate legal requirements that have not been struck down by a court raises a host of legal issues itself.

Consequences of the Notice

Put simply, if a business client comes to me saying that somebody has given them this document, the very LEAST I'll suggest is putting it in the shredder.

It doesn't amount to an invocation of any rights that trigger reprisal protection, though, so I'd also likely tell such a client to get the person out of their environment to avoid future headaches. And there's a pretty good argument to be made that the document, if given to an employer, is insolent and insubordinate, which is all disciplinable and could - under the right circumstances - ground an employer position that the employee can be dismissed for just cause.

Document 2: The Supposed Right To Refuse Testing

There's a one-page document that asserts a "legal right to refuse COVID testing", claiming that it's an indictable offence to deny any service, employment, or education opportunity on the basis of such refusal.

As with the above, it's nonsense.

It relies primarily on the Genetic Non-Discrimination Act, a statute which - as one might imagine - prohibits discrimination based on one's genetics.

The argument here is premised on the notion that, because PCR testing looks for genetic material of the virus that causes COVID-19, it's a 'genetic test' within the definition of the Act. This interpretation is unlikely to hold the day.

While the definition doesn't expressly clarify whose genetic material is being analyzed, statutory interpretation is premised on a wholistic reading of the scheme of the statute. The purposes and functions of the statute are clear in that they're providing protection from discrimination based on your genetic predispositions for disease, not based on whether you have genetic material of infectious diseases in your body.

I've never seen any case law considering charges under this statute; however, there was a reference question on its constitutionality put to the SCC, asking whether it properly fell within Parliament's criminal law power. A majority found that it did, and the reasons it did turn on relevant interpretive questions in terms of the purpose of the Act.

It's a complex split decision of the court, but the central takeaway for our purposes is this: The judges that found it to be a legitimate exercise of the Federal government's criminal law power did so because they regarded the goal as being for employees to control their own genetic information, or because they regarded the goal as being to protect employees from discrimination on the basis of their genetic characteristics. An interpretation that it protects the results of COVID testing is incompatible with the constitutionality of the statute on the whole.

The information sheet also relies on s. 247.98 (subsections 2-4) of the Canada Labour Code, which has similar prohibitions on genetic testing requirements...except that, while the info sheet doesn't actually reproduce the CLC's definition of genetic testing (at subsection 1, which is mysteriously omitted from the information sheet), this one does expressly provide that it's only designed to capture testing that analyzes the employee's genetic material.

Sorting the Good Information from the Bad

There's a lot of garbage around on social media right now, supported by a very small handful of ideological contrarian lawyers.

Within the employment law bar, there is overwhelming agreement that employers are generally able to insist on vaccination or such other public health measures as they deem appropriate, subject to contractual (and/or collective agreement) concerns and narrow human rights accommodation issues. Employment lawyers could argue at length about the outer limits of these nuances, like the scope of an employer's duty to accommodate in a given context, but there's no real controversy as to the broader issue.

Look for lawyers directly willing to put their names to the proposition, and you'll find an overwhelming trend. For starters, there's me. I went on Ryan Jespersen's show with Dwayne Chomyn a few months back to talk about exactly this issue. But there are also loads of credible law firms and other lawyers who have made their own online posts which will more-or-less align with what I've laid out in my entries: Employers are usually allowed to do it, subject to possible contract-based claims and narrow human rights exceptions, and different considerations for unionized contexts.

On the other hand, you get a very small number of lawyers who consistently argue against the constitutionality and permissibility of anti-COVID measures and restrictions.

See this Star article for a good grasp on the discussion: Pinkus thinks that employers will likely have to pay out notice to terminate an employee, because it's a "dangerous assumption" that courts will side with employers in that context. Levitt thinks that the employer's legitimate safety and public health considerations behind the policy will allow them to terminate unvaccinated employees for just cause, without paying them out anything.

And that is the real debate among lawyers right now. I come down somewhere in the middle: I see Levitt's argument. I don't agree with it, but I can't say with any real confidence that an Alberta judge would see it my way instead of his. But I also think that, even if my argument holds the day and unvaccinated employees are entitled to reasonable notice, they will not be sympathetic plaintiffs.

(Yes, I've heard the sob stories about the injustice of being forced out of a job because they didn't get the vaccine. I understand that these folks think they're the victims. No court is going to see it that way. Even my argument that they may have entitlements is premised on a very technical contractual analysis, not on a perception that the employer is doing something morally wrong. As a result, I'd be reluctant to actually take on such a wrongful dismissal file: I've had a few files in the past where I've gleaned a technically sound claim in a client's unmeritorious diatribe of perceived injustice, but where they want to pursue the perceived injustice instead of the technically sound legal claim. These files never end well, because no matter how much I try to manage the client's expectations [which ends up taking a lot of time and legal fees], they always want a remedy that the law simply can't provide.)

Unsympathetic plaintiffs sometimes win, but it's usually not the win they hope for. It means that the court will not bend over backwards to find a remedy for them, and even if the court accepts my technical contractual argument, they'll get an award at the low end of the appropriate range, and are more likely to face deductions for things like failure to mitigate.

Just Get The Damn Shot

I've had a lot of "I'm not an anti-vaxxer but..." calls. Invariably, their reasons for not vaccinating boil down to misapprehension of the science of vaccination and mistrust of institutional healthcare.

It's not my job to convince you that vaccines are safe and effective. They are. But, as much as these callers want to vent about their perception on this issue, that's not actually why they're paying me.

What they ARE paying me for is my analysis of their legal position, and that analysis brings me to the same conclusion: Get the shot.

If you refuse to get the shot, and get fired, here's what happens: You may (or may not) be entitled to compensation for some sort of notice period. But even if you win a wrongful dismissal action, your damages are at most going to be the money you lost by not working over that notice period. There's really no formula here where you come out ahead. And there's a very real possibility that you might only get a very short notice period, and spend many months unemployed.

As well, even if you win, that can take many months or years, and significant legal fees. You won't get all your legal fees back. The interest you'd get on a settlement or judgment is...low. And in the mean time, you're unemployed, with no income, and the Feds have suggested that you won't even get EI.

Oh, and the kicker: If you lose - which you might - then not only do you still have to pay your own lawyer's fees, but you'll likely also have to contribute toward the employer's legal fees.

These are the risks and costs associated with choosing to get fired. They range from 'somewhat adverse' to 'completely devastating you financially'. There's really no up side.

If that's a price you're willing to pay to not get a vaccine that's widely recommended by an overwhelming majority of medical experts around the world, I'm not going to be the one to convince you otherwise. But for most people...it isn't.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.