Businesses still requiring proof of vaccination risk challenges, constitutional experts say

Ontario businesses can keep asking customers for proof of vaccination against COVID-19 even though the province no longer requires it — but could face challenges in doing so, constitutional law experts say.

Ontario restaurants, gyms and movie theatres no longer have to check customers' proof of COVID-19 vaccination as of Tuesday.

The Verify Ontario app will remain available for businesses to use, a spokesperson for the province's Ministry of Health confirmed to CBC. People can still download a copy of their vaccine certificate, the spokesperson added.

CBC has asked the ministry to clarify if newly-vaccinated people will be able to generate vaccine certificates and is awaiting a response. 

Premier Doug Ford asked people to be kind as some businesses continue with the practice.

Businesses can lay down rules but not discriminate

Businesses are allowed to impose conditions on patrons, said Montreal-based constitutional and human rights lawyer Julius Grey. They can require customers to have footwear or not dine in bathing suits, for example.

But they're not allowed to discriminate, so whether non-vaccination against COVID-19 is an issue under the Charter of Rights and Freedoms or Ontario's human rights code "could be disputed," Grey added. 

Errol Mendes, a professor of constitutional and international law at the University of Ottawa, said if businesses feel it's necessary to continue asking for vaccine passports for the safety of customers and employees, they are entitled to do so.

"However, there are limitations," he said.

Mendes pointed to a policy statement released last fall by the Ontario Human Rights Commission, which asserted that businesses have a duty to accommodate people who can't be vaccinated for medical reasons — "unless it would significantly interfere with people's health and safety."

People with medical issues should bring an exemption document from a doctor or nurse with them to a business, the commission added in its statement. 

Patrons arguing that their "personal, singular belief" precludes them from getting vaccinated and having a certificate may face a tougher time waging their challenge, Mendes said.

"There is now increasing acceptance by [the] Ontario Human Rights Commission and other commissions across Canada that … you have to show that it is part of some type of organized or recognized religion," he said. 

Some Ottawa businesses have said they're pressing on with vaccine passports, at least for now, in order to give customers peace of mind about sharing space with others who are vaccinated. 

Grey said that's a tenuous hope given the vaccine passport system will no longer be consistently applied. 

"A single store will not give the security because as you leave it and you go to the next store, you no longer have that requirement."

Not everyone will keep carrying their proof of vaccination with them, he added. 

"I think people who keep enforcing it for a long period of time are going to lose business," said Grey. "It is a form, I think, of perhaps well-intentioned obstinacy to keep doing it."