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Businesses can ‘absolutely’ discriminate based on vaccine status: MJ lawyer

Talon Regent is confident that because there is still a pandemic, a judge would agree that it is reasonable for businesses to ask about its customers’ vaccination status

MOOSE JAW — Despite Premier Scott Moe’s remarks that businesses should “consult their lawyer” if they ask for proof of vaccination after Feb. 28, lawyer Talon Regent is confident that courts would see such requests as reasonable: "Businesses are absolutely allowed to discriminate on the basis of vaccine status." 

“So, when it comes to the laws around whether or not a business can collect (information about vaccination status),” Regent explained, “that is determined by PIPEDA, the Personal Information Protection and Electronic Documents Act.”

PIPEDA information, including a guide for private businesses to follow, is found on the website of the Office of the Privacy Commissioner of Canada (OPC). That website says that PIPEDA “states that any collection, use or disclosure of personal information must only be for purposes that a reasonable person would consider appropriate in the circumstances.”

Reasonability is the main basis for much of Canadian law, and Regent told he is confident that because there is still a pandemic, a judge would agree that it is reasonable for businesses to ask about its customers’ vaccination status.

“People often misunderstand how these rules differ between government agencies and private enterprises,” Regent said. “Government has to jump through a lot more hoops than private businesses do for many different types of data collection. When it comes to private enterprise, it only has to be reasonably justifiable. And we are still in a pandemic, whether the premier wants to acknowledge that or not.”

Businesses would still be obligated to explain to potential customers how they justify asking for proof of vaccination. Regent said that that explanation would be easy to do.

“A business can simply say, ‘We have many individuals that are going to be in close contact with one another, and so for the safety of employees and customers alike, we want proof of vaccination.’ And as far as I’m concerned, that would be good enough, from a privacy perspective, to continue requesting proof of vaccination.”

On Feb. 8, Moe announced that the proof-of-vaccination mandate would be lifted as of 12:01 a.m. on Feb. 14. When asked afterward by the media what the legal implications might be for businesses that continued to ask for vaccination status, he somewhat ominously said that “my advice to them would be to consult their lawyer.”

Moe implied that businesses could not ask for proof of vaccination without government protection.

“The regulations that were in place indemnifying businesses to act on the proof of vaccination policy for customers and for employees,” Moe said, “should be considered temporary, and it will be removed post-February 13.”

Regent said that isn’t correct.

“A lot of people will try to say that requesting proof of vaccination and refusing entry to people who aren’t vaccinated, that is discriminating against them, (and) it’s contrary to human rights. That’s just not the case,” Regent explained. “There’s no doubt that anyone trying to bring that in front of (a) judge would be unsuccessful.”

He clarified that the law would probably not protect a business from asking the question once the pandemic is over, or if there were complicating factors such as a person being medically or religiously exempt from vaccination. However, concern for the health and well-being of employees and customers during a pandemic fits the legal requirements for reasonability.

“And that will continue to be the case until the courts are satisfied that we are no longer in a state of heightened concern around the pandemic,” Regent said. “It really just does come down to that test of whether or not they can articulate a purpose behind the collection of that data, and defend that purpose.”