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A woman wearing a mask in a blue T-shirt speaks into a microphone as a crowd watches.
Dr. Nili Kaplan-Myrth, an Ottawa family doctor who hosted several pop-up COVID-19 vaccination clinics, speaks in Ottawa in August 2021 during JabaPalooza, a rally calling on Ontario to adopt a provincial COVID-19 vaccine mandate. THE CANADIAN PRESS/Justin Tang

How regulatory agencies, not the courts, are imposing COVID-19 vaccine mandates

The COVID-19 pandemic has undoubtedly reshaped how we perceive ourselves and the social world around us. It has more recently transformed the business of governance in western democracies like Canada.

The crisis has modified how the law is applied to society and redefined who decides the exceptions to the rules that our society must now adhere to.

The decisions of medical health-care professionals like doctors and nurse practitioners are now far more legally and politically significant than before, since they’re determining who is exempt from following new vaccination laws and mandates.

A doctor wearing a head covering and a mask adminsters a vaccine to a woman.
Dr. Stephen Lee from Toronto’s Michael Garron Hospital administers a Moderna vaccine at a mobile vaccination site outside a mosque in Toronto in April 2021. THE CANADIAN PRESS/Chris Young

Because of the implications that immunization exemptions have on public health, regulatory bodies like the Ontario College of Physicians and Surgeons and the College of Nurses of Ontario are playing a more significant role than they have previously in holding doctors and nurses accountable.

Under the current pandemic circumstances and new immunization laws, the decisions of administrative and regulatory agencies are likely to have a much greater impact on society than the courts.

Vaccine passport rules

Ontario’s vaccine mandate took effect on Sept. 22, 2021, requiring vaccine passports to access various public- and private-sector facilities.

Canadians over the age of 12 who remain unvaccinated face a difficult decision: receive a government-approved COVID-19 vaccine or accept the consequences.

Canadians face more than just missing out on public social gatherings as institutions move towards more restrictive measures. Failing to comply with vaccine mandates may also result in the loss of jobs and being forced to withdraw from educational programs.

Additionally, Canadians who are not fully vaccinated by Nov. 30 will be unable to travel from Canadian airports or railways.

Although the vaccination requirements could eventually become voluntary, they currently require compliance.

Travellers wearing face masks wait in line at an airport.
Travellers wait in line to check in for a flight to Manila at Vancouver International Airport in Richmond, B.C., in July 2021. THE CANADIAN PRESS/Darryl Dyck

Exception to the rules

The only alternative to restrictive government mandates is to obtain a medical exemption that can only be verified by a doctor or nurse practitioner.

While considerations for human rights-based exemptions are not entirely precluded or disregarded, in Ontario, the province’s Human Rights Commission has found vaccination requirements generally permissible under its human rights code.

Read more: Can COVID-19 vaccinations be mandated? Short answer: Yes

This has left much of the power to determine exemptions from new health and safety measures almost exclusively in the hands of doctors and nurse practitioners.

While medical exemptions are considered rare and presumably granted in exceptional circumstances, Ontario’s Chief Medical Officer of Health said he’s heard reports suggesting they are being granted too frequently.

A doctor stands outside her medical clinic, arms crossed.
Dr. Memoona Butt of Calgary says some patients have demanded vaccination exemptions based on misinformation or unverified information. THE CANADIAN PRESS/Jeff McIntosh

There has also been a growing demand on doctors for exemptions from those who are vaccine-hesitant even though they don’t actually qualify.

What remains unclear is whether doctors will meet the demands of unqualified exemption requests. Some doctors have already shown a willingness to oppose the mandates and grant illegitimate exemptions.

Can doctors be held accountable?

Despite rigid ethical standards and policy directives and guidelines provided in Ontario by the Ontario College of Physicians and Surgeons on immunization exemptions, doctors exercise a great deal of discretion when it comes to their practices.

This level of discretion, while necessary in many cases, may allow physicians to make medical decisions according to their own political beliefs and not according to objective medical standards.

The problem with exercising discretion when it comes to COVID-19 policies is that it grants physicians who oppose vaccine mandates a tremendous opportunity to circumvent the law.

While the rule of law does not require all people to be treated identically, it does require applying the same standards to all people in similar circumstances.

Read more: A proposal to reduce vaccine exemptions while respecting rights of conscience

Under these circumstances, physicians may potentially violate laws by not giving the same considerations or applying the same standards to people in similar circumstances.

In other words, they may allow some patients to avoid vaccine mandates by providing illegitimate immunization exemptions to unqualified people.

Holding doctors accountable, while not entirely impossible, will be quite challenging. Since a system has not yet been established to track or validate exemptions, the process for reviewing them is unclear.

Tribunals as accountability institutions

The Ontario college traditionally oversees and regulates the medical health-care profession. Disciplinary actions were once handled internally by various committees, but the college established its first independent discipline tribunal on Sept. 1, 2021. The tribunal is responsible for adjudicating allegations of professional misconduct or incompetence of Ontario physicians.

Tribunals are in many ways like courts. They follow particular legal procedures, conduct hearings and play an important role in interpreting and applying the law.

However, unlike courts, tribunals are designed to adjudicate matters and regulate the administration of particular public policy areas such as immigration and refugee policy. Due to their expertise, tribunal members are responsible for holding public officials accountable for their actions.

Tribunals are designed to function as institutions of accountability, but achieving that goal is easier said than done.

The timely move by the college towards establishing an independent, arms-length adjudicatory board is an indication of the legally and politically heightened role of doctors. It also signals the increasing trend of judicialization of our politics.

However, rather than the courts, administrative agencies such as the newly created Ontario Physicians and Surgeons Discipline Tribunal will be on the front lines when holding doctors accountable in their application of the law.

Heightened role of regulatory bodies

Like other provinces across Canada that have implemented similar COVID-19 immunization policies, there has been a lot of concern over the potential violation of rights and civil liberties associated with the new health and safety measures.

Arguments by vaccine mandate opponents citing the Canadian Charter of Rights and Freedoms are unlikely to succeed, so pandemic-related legal battles will more likely be handled by regulatory bodies and administrative tribunals.

Read more: Canadian colleges and universities can mandate COVID-19 vaccination without violating Charter rights

The decisions made by discipline tribunals and others, like the Labour Relations Board that handles employee compliance with vaccine policies, will therefore play a crucial role in restructuring a post-pandemic society.

For now, the COVID-19 pandemic has cast a bright light on the role of regulatory organizations and administrative agencies and how they mediate the relationship between the state and society. In the post-pandemic area, more attention should be paid to the decisions they make.

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