Justin Trudeau’s vaccine promise that wasn’t made to be kept

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Justin Trudeau’s Liberals made an election promise to pass a law to protect employers from being sued when they fire unvaccinated workers, and they didn’t do it.

Now those lawsuits are piling up.

There’s no sign the Liberal government plans to fulfill the promise. Mr. Trudeau didn’t even put it in a mandate letter to any of his ministers.

What’s worse is that it’s a promise that Mr. Trudeau was probably never really serious about keeping. Certainly, the Liberals never seemed to know how to do it. There was, after all, a not-insignificant question about whether Ottawa has the authority.

Now employers are facing the lawsuits without the promised protections, with workers claiming they are owed cash payouts because non-vaccination is not a valid cause for dismissal. The Globe’s Vanmala Subramaniam reported last week that employment lawyers are being inundated with such cases now that several employers have let unvaccinated workers go.

Provincial governments, which are responsible for most employment law, have largely chosen to avoid controversy by leaving private-sector vaccine mandates up to employers.

But in last summer’s election campaign, Mr. Trudeau ramped up his support for vaccine mandates as he accused Conservative Leader Erin O’Toole of being more concerned with anti-vaxxers’ freedom of choice than with public health.

“Let’s be clear: It’s your freedom I am focused on. The freedom of the responsible majority of us who are fully vaccinated,” Mr. Trudeau said as he unveiled the Liberal election platform on Sept. 1. “And I will always stand up for your right to be safe.”

He cited his support of vaccine mandates for federal public servants and air travel, and added a new promise: “We’ll protect businesses that mandate vaccinations from unjustified lawsuits.”

In the platform book released that day, the lawsuit-protection pledge was on the first page of promises. And it was explicit. If re-elected, the Liberals would “table legislation to ensure that every business and organization that decides to require a proof of vaccination from employees and customers can do so without fear of legal challenge.”

Mr. Trudeau’s Liberals were re-elected Sept. 20, and four months later there is no sign of the legislation, bupkus.

Mr. Trudeau didn’t include the task in mandate letters sent to Labour Minister Seamus O’Regan or Justice Minister David Lametti. When The Globe asked if it is still coming, a spokesperson for Mr. Lametti, Chantalle Aubertin, said in an e-mail that the Liberals are “working across government on next steps” to ensure business can be protected from legal challenge.

Next steps? Where’s the legislation?

Many of the employers who get hit with such a lawsuit will settle to avoid litigation, said Lai-King Hum, founder of Hum Law, a Toronto firm specializing in labour and employment law. Employers in Ontario have the right to let employees go, but the question is whether dismissing them for being unvaccinated constitutes cause, and under what circumstances, she said. If not, the employer could be liable for weeks or months of pay, perhaps up to 24 months in some cases.

One can debate whether governments should step in to clarify the rules, but there is no doubt about what Mr. Trudeau promised, in a campaign where he portrayed such issues as urgent.

But right from the start, there was a problem. Aside from a relatively small number of federally regulated workplaces, employment law is under provincial jurisdiction. So is civil law. How could the Liberals say Ottawa had the constitutional power to legislate on such matters?

When asked on Sept. 1, the Liberals had a variety of answers. One party aide suggested Ottawa could claim temporary emergency power under the vague constitutional authority to make laws for the “peace, order, and good government” of Canada. Later that day, party spokespersons gave a different, more vague explanation that Ottawa might start with federally regulated companies and also try to speak to provinces.

But speaking to provinces can’t provide Ottawa additional constitutional power, and it is debatable whether courts would accept the federal government’s claim of emergency power, too. Certainly the latter flies in the face of Mr. Trudeau’s often-repeated assertion that there is no need for the feds to claim emergency powers to override the provinces’ powers on public-health matters such as lockdowns.

At any rate, there’s no sign Mr. Trudeau’s Liberals will fulfill the pledge. It’s unclear if they can. And it’s hard to believe they ever really meant to.

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