Ontario’s “Roadmap to Reopen” and Vaccine Passports

The Ontario government has released plans to begin a gradual reopening of the province, and with it timelines for when businesses may be able to expect to welcome customers back indoors. 

On Thursday, May 20th, the provincial government announced its three-step plan that will be guided by public health indicators and vaccination thresholds to inform when it would be safe to move into the next stage.

The first stage of the roadmap will begin when Ontario reaches a vaccination target of at least 60 percent of adults with a first dose. Ontario will stay in stage one for 21 days, and only enter the second stage when 70 percent of the population has received their first dose and 20% have had two doses. Finally, the third stage will likewise only be entered after 21 days and if 70- 80 percent of the adult population has received one dose and 25 percent have received two. A full list of what is reopening and when is available on the government of Ontario website, but as early as the first stage we will see a return of non-essential retail (at 15 percent capacity), outdoor sports, fitness and personal training (up to 10 people), and outdoor dining (up to 4 people per table).

As the province gradually progresses through the reopening of businesses and other amenities, some business owners may have questions as to how they can ensure their customers and staff remain safe. Ontario’s announcement comes a day after the Office of the Privacy Commissioner (OPC) released a joint statement with provincial and territorial privacy commissioners on vaccine passports.

The OPC addresses the growing consideration of the use of vaccine passports among businesses and governments. These vaccine passports, either paper or electronic certificates, are used as a means to prove that an individual has been vaccinated.

“At its essence, a vaccine passport presumes that individuals will be required or requested to disclose personal health information – their vaccine/immunity status – in exchange for goods, services and/or access to certain premises or locations. While this may offer substantial public benefit, it is an encroachment on civil liberties that should be taken only after careful consideration.”

In regards to the privacy considerations in implementing such requirements, the OPC states that there are significant privacy risks involved, and therefore the necessity, effectiveness, and proportionality of vaccine passports must be established in each specific context they are used, and ensure their use complies with applicable privacy laws. First, a vaccine passport must be necessary to achieve the intended public health benefit. Second, it must be likely that they will be effective at achieving their purpose throughout their use. Finally, the risks to privacy must be proportionate to the purposes they set out to achieve.

In either the government or business context, there must be clear legal authority before introducing the use of vaccine passports, writes the OPC. Further, this legal authority must not rely on consent alone as a “sufficient basis” to proceed under existing public sector privacy laws. For businesses considering using vaccine passports, “the clearest authority under which to proceed would be a newly enacted public health order or law requiring the presentation of a vaccine passport to enter premises or receive a service.” Without such authority, consent might provide sufficient authority if it is voluntary, meaningful, obtained through the use of the clear and plain language of the purposes, necessary, for a reasonable purpose, and if individuals are given a true choice (in other words, consent must not be required as a condition of service”). The above recommendations regard provinces and territories outside of Quebec.

A special thank you to Julia Nowicki for her help and contributions to this article!

The content of this article is written for general information purposes only and does not constitute specific legal advice. This article should not be used as a substitute for competent legal advice from a licensed lawyer. Please contact us at 416-238-5527 if you’d like to speak to an Emerge LLP lawyer.