Employer dismissed employee for non-compliance
The Ontario Human Rights Tribunal has dismissed an application by a worker who alleged that his dismissal for failing to comply with a mandatory COVID-19 vaccination policy violated their human rights.
The worker was an employee of Bayshore Healthcare, a home healthcare provider in Toronto. In the fall of 2021, Bayshore introduced a mandatory COVID-19 vaccination policy for all of its employees. The policy stated that employees could request an exemption based on religious beliefs and the company would assess it. It also advised that termination could result from a failure to comply.
The worker emailed management expressing concerns about privacy, informed consent, genetic tests, and the safety and efficacy of the vaccine. The worker asked if Bayshore would accept liability if they took the vaccine and suffered any adverse effects, saying that the 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.”
The worker didn’t elaborate on their beliefs and didn’t formally request an accommodation under the policy. They didn’t get vaccinated by the policy’s stated deadline and they indicated that they were unwilling to comply, so Bayshore sent them a letter on Nov. 5 stating that vaccination was a mandatory company policy and a failure to comply could lead to termination.
Worker refused to comply with vaccination policy
The worker emailed management on Nov. 26 indicating that they were aware of the consequences of non-compliance, but they still refused to get vaccinated. Bayshore terminated the worker’s employment.
The worker filed a human rights application alleging that Bayshore violated their right to equal treatment with respect to employment because of creed, disability, and association. The ground of creed was related to the worker’s beliefs, and association was with other unvaccinated people.
As for the ground of disability, the worker said that Bayshore’s demanding of compliance with the policy and imposing consequences such as termination for non-compliance was workplace harassment that caused mental suffering and “significant anxiety.”
The worker also claimed that Bayshore had engaged in reprisal against him.
The tribunal held a combined summary and preliminary hearing and determined that the worker’s application lacked a reasonable prospect of success on multiple grounds.
Protected ground
Regarding discrimination based on association, the tribunal noted that the worker provided no evidence or arguments identifying a protected group with whom they were allegedly associated. Unvaccinated status is not a protected ground under the Ontario Human Rights Code, the tribunal said.
The tribunal also found that the worker didn’t provide any medical evidence supporting their assertion of mental suffering and “significant anxiety” stemming from the mandatory vaccination policy. Without such evidence, the worker’s claim couldn’t meet the definition of disability under s. 10(1) of the code, which includes “a condition of mental impairment or a developmental disability” and “a mental disorder.”
The tribunal also noted that it twice directed the worker to submit medical documentation identifying a disability that prevented vaccination, but the worker declined to do so. As a result, there was no factual basis to support the worker’s claim that Bayshore’s actions were linked to a disability, the tribunal said.
On the matter of creed, the worker mentioned their “beliefs” to Bayshore, but they didn’t formally request accommodation on creed-related grounds. The tribunal noted that jurisprudence had established that an employer can’t accommodate an employee’s needs when it’s unaware of those needs.
No accommodation request
The worker provided a statement explaining their creed to the tribunal, but this was only after their employment had been terminated. Bayshore had no prior knowledge of this information, so the company’s duty to accommodate hadn’t been triggered, said the tribunal.
The tribunal also found that although the worker said that the vaccination policy conflicted with their beliefs, Bayshore clearly outlined the consequences of non-compliance in communications to employees about the policy. There was no evidence to suggest that the dismissal was intended as a retaliation for the worker asserting their rights under the code, the tribunal said.
The tribunal determined that that none of the worker’s claims had a reasonable prospect of success and dismissed the application in full. See Fleman v. Bayshore Healthcare Ltd., 2025 HRTO 607.
