Many of us have experienced the need to prove COVID-19 vaccination status when entering our favourite bar or restaurant. But what obligations do businesses and organizations have when it comes to checking whether their customers have been vaccinated against COVID-19, and what could happen if they do not comply with the requirements? With reports aplenty about the production of fraudulent vaccine certificates, what claims could arise from the use of dodgy documents?
This article provides information on the obligations of Ontario businesses and organizations when it comes to checking whether individuals have been vaccinated.
Which premises require vaccine certificates to enter?
The Reopening Ontario (A Flexible Response to COVID-19) Act 2020 and its accompanying regulations set out the requirements relating to proof of vaccination. Proof of both identification and of being fully vaccinated against COVID-19 is required when entering a range of premises, subject to numerous exceptions. These premises include:
- the indoor areas of restaurants, bars and other food or drink establishments;
- the indoor and outdoor areas of establishments where dance facilities are provided, such as nightclubs;
- the indoor areas of meeting and event spaces;
- the indoor areas of facilities used for sports and fitness activities;
- the indoor areas of casinos and other gaming establishments; and
- the indoor areas of concert venues, theatres and cinemas.
According to the Government of Ontario, these requirements are an essential step in limiting the further spread of COVID-19, so that Ontario businesses can remain open and so that individuals can feel and be safer while in those premises.
What are the obligations on Ontario businesses and organizations?
The person responsible for the business or organization must require each patron to provide, at the point of entry, proof of identification and of being fully vaccinated against COVID-19. They must also comply with the guidance published by the Ministry of Health, which sets out matters including what constitutes proof of identification and being fully vaccinated against COVID-19.
Businesses and organizations must take the following steps:
- match the name and date of birth on the vaccine certificate against that on the identification;
- verify the patron is fully vaccinated; and
- verify that the date of administration of the final shot was at least fourteen days prior to the date the individual is seeking entry to the premises.
A good faith effort to act in accordance with public health guidelines protects businesses from liability
Provided that the business or organization makes a good faith effort to act in accordance with the requirements, they are protected from liability. Under the Supporting Ontario’s Recovery and Municipal Elections Act 2020, no cause of action arises against a person as a direct or indirect result of an individual being infected or exposed to COVID-19 if the person made a good faith effort to act in accordance with applicable public health guidance and any federal, provincial and municipal law. A “good faith effort” is defined to include an honest effort, whether or not that effort is reasonable.
However, this statutory protection does not apply if the person’s act or omission constitutes gross negligence. Therefore, businesses or organizations that fail to check for proof of vaccination in accordance with the requirements could still be subject to claims if they acted in a grossly negligent manner.
What are the possible legal implications of using fake vaccine certificates?
There have been reports in the media of some individuals using fraudulent vaccine certificates to gain entry to premises.
Under the proof of vaccination regulations, an individual who provides any information to a business or organization, including proof of identification and of being fully vaccinated against COVID-19, must ensure that the information is complete and accurate. Failure to comply with this requirement can result in charges under the Reopening Ontario (A Flexible Response to COVID-19) Act 2020. It remains to be tested whether using a fake vaccine certificate by an individual could lead to civil claims, for example, if there was a COVID-19 outbreak at a restaurant attended by an unvaccinated individual who presented a fraudulent vaccine certificate to gain entry to the restaurant.
Businesses and organizations need to comply with the obligations placed on them by the regulations and guidelines; however, they do not need to independently verify the authenticity of vaccine certificates provided by individuals.
How has the province responded to the use of fraudulent vaccine certificates?
To provide greater security and privacy protection, the Government of Ontario has introduced an “enhanced method” of proving identity. The Government has said:
… these tools will make it easier, more secure and convenient for individuals to provide proof of vaccination where required to do so, and for businesses and organizations to verify vaccine certificates while protecting people’s privacy.
As of January 4, 2022, Ontarians must use the enhanced vaccine certificate with an official QR code to gain access to premises where proof of vaccination is required. Vaccine receipts without a QR code will no longer be accepted as valid proof of vaccination.
Businesses and organizations are required to scan the QR code using the “Verify Ontario” app. The app will notify the business or organization if the individual is fully vaccinated and permitted to enter the premises. The business or organization must still confirm the individual’s name and date of birth with a piece of identification.
Contact Tierney Stauffer LLP in Ottawa, Arnprior, Cornwall, Kingston and North Bay for trusted legal advice
For more information about personal injury matters in Ontario, contact one of the experienced personal injury lawyers at Tierney Stauffer LLP in Ottawa, Cornwall, Arnprior, Kingston, and North Bay. Our highly experienced and compassionate personal injury lawyers can assist with issues relating to premises liability. We’ll advise you of your rights and help you navigate the process of bringing or defending against personal injury claims. Contact us online or at 1-888-799-8057 to book a consultation.