Vaccine Rollouts: The risks, your rights, what you must know

Vaccine Rollouts: The risks, your rights, what you must know

Personal injury lawyer Jasmine Daya

By Michelle Chermaine Ramos
The Philippine Reporter

Back on December 10, 2020, Prime Minister Justin Trudeau announced Canada’s plans to create a pan-Canadian no-fault Vaccine Injury Support Program (VISP). This fund is supposed to compensate Canadians who might have serious side effects from any Health Canada authorized vaccine. At the time of writing this, no concrete system has been clearly established yet. To put this into perspective, Quebec has had their vaccine injury compensation program since 1985. According to the Public Health Agency of Canada, “over 20 countries around the world have national vaccine injury support programs, including all other G7 countries”. On February 22, 2021, the World Health Organization announced the first and only global no-fault compensation program for the 92 low and middle-income countries receiving vaccines distributed by the COVAX Facility. So why is the rest of Canada falling behind and what can Canadians do if they experience any adverse effects from the vaccines?

Why are health care workers hesitant to take the vaccine?

In the previous issue of The Philippine Reporter, Mary Ann, a surgical technician in a Barrie hospital reported how she and other friends in the medical field are hesitant to take the vaccines.

Toronto-based personal injury lawyer Jasmine Daya emphasizes the importance of having a vaccine injury fund due to her client (not MaryAnn)suffering severe side effects from the Pfizer vaccine. Within ten minutes of the first dose, the healthcare worker and mother initially experienced lightheadedness, gradual onset of headache and lip swelling after which Benadryl was administered. She had immediate symptoms other people complained of that Benadryl has been noted to alleviate. However, she developed left facial droop and left arm and leg tingling making it difficult for her to hold and lift things, dress herself, do the daily tasks of her employment and household chores.

She is undergoing OHIP-funded medical investigations, but current circumstances have made things more challenging. “It’s very hard for her to put on the hospital gown during these appointments. And she is on the verge of tears because she can’t even have her daughter to assist her and no one in the hospital is assisting her because of COVID,” says Daya.

Although her client is still working, she is fearful of continuing to work because she is supposed to provide care for others while she can barely care for herself due to these injuries.
“If she stops working, she has four kids…so how does she handle the household expenses, the needs of her children and herself?” Daya explains on her client’s plight. Since there are currently no laws to compensate those affected, Daya is unable to do anything from a litigation perspective at this point. However, she is advocating for her client by raising awareness, writing letters to Pfizer and asking Health Canada to provide an outline of what the program will consist of and how her client can apply.

In this interview, she explains the legalities of the vaccine rollout, your rights, and why it is crucial to have this program implemented as soon as possible.

The Philippine Reporter: What is a “no-fault” vaccine injury compensation program?

Jasmine Daya: You don’t need to prove liability against the manufacturer or against the government. You just need to be able to show that you took this vaccine and had the significant adverse effects. The reason it’s so important to have such a fund is because it is virtually impossible to successfully sue a drug manufacturer if one has adverse effects. Oftentimes when governments enter into contracts to purchase the vaccines, these manufacturers are given immunity. Now, we know that these contracts aren’t being released to the public for good reason. There are probably things in there that we shouldn’t be seeing or could get into the wrong hands and there could be problems. When a country negotiates the purchase of these vaccines, these companies are given immunity so that they don’t have to worry about what if individuals have adverse effects because they’re mass producing and they’re providing for our country on a large scale. The government then takes over and usually these contracts not only have immunity but indemnity clauses.

So, if anyone tries to sue the manufacturer, it could be the government who has to defend these manufacturers or step into their shoes and provide a defense. So that’s one issue. The contract immunity and indemnity agreements that may or very well likely exist. Because you have to prove negligence. Oftentimes a vaccine is not the problem. So, if an individual happens to have adverse effects, it may be because they have a preexisting condition. It would be different if there was a bad batch for example. Years ago, there was batch of the polio vaccine given to children and it actually contained polio in it. So, this one group of children all took this vaccine to try to prevent against getting polio but ended up getting polio. There were lawsuits in that regard, but that is different because in those situations, you have a bad batch. So how can individuals who suffer get any compensation if they can’t go after the manufacturer because of their own predisposition or just something happened? We need this fund to be able to assist them.

TPR: Quebec has had their fund since 1985. Why has the rest of Canada fallen behind?

JD: It really takes the politicians to want to do it. They have the ability. So, it’s necessary for them to take action and I think the public needs to voice the desire for this program which is why I’m advocating for my client. I’m one voice but I just feel that my voice is better than no voice.

TPR: How do we even quantify how much is enough to compensate for the potential loss of livelihood or quality of life?

JD: Unfortunately, no amount is enough to compensate an individual for their pain and suffering. Money is a poor substitute for health. But in terms of what we must consider, we have to consider one’s ability to work based on their injuries, lost wages and their future cost of care. No government program is going to be perfect, but there needs to be something because something is better than nothing. And right now, even though we have an announcement, we still have nothing until we see what it is.

TPR: What should people do if they experience adverse side effects?

JD: They should follow up with their health care providers to ensure they are getting the right treatment they require and to ensure that their symptoms are properly investigated and diagnosed. You want to leave a paper trail from a legal perspective. Also, from a health perspective, we are in unchartered territory. The vaccines are new. We want to ensure that people having adverse effects are monitored so if there is a worsening in the condition, health care providers can address it accordingly. If you aren’t following up with your doctors and you suddenly show up with a really bad case of something, they’re not going to know what the issue is. Whereas if you’ve had ongoing investigations, they’re going to have a better idea of what is going on.

TPR: In the absence of laws to compensate those affected by vaccines, what is there to safeguard people’s rights to refuse them? On what grounds can people refuse to consent to inoculation?

JD: The Canadian government has stated that they will not be making the vaccine mandatory and at present, it is currently not mandatory. You know there may be a point in the future where certain employers, for example, require the vaccine. Or it may be required by certain countries for travel. However, at present in Canada, anyone can refuse the vaccine.

TPR: In a work setting, how do you balance the need to protect the staff on one hand versus the individual’s right to security of the person as per the Canadian Charter of Rights and Freedoms, with some frontliners facing discrimination based on their refusal to take the vaccine?

JD: That would certainly be an employment law issue. If anyone feels within their employment that they are being ostracized or other issues have arisen because of them not wanting to take the vaccine, and it could be that they could have their own personal views…it could be religious, it could be anything…but if they feel that there are problems in the workplace, first, they need to speak to their supervisors or HR or whoever to try to deal with this situation internally. But if that does not work, then they should certainly seek the advice of an employment lawyer because it is a form of prejudice that should not occur in the workplace.

TPR: If someone refuses to take the vaccine at work, but later gets infected with COVID, what options do they have? Can they get fired for it? What are some things to consider in this situation?

JD: As the vaccine is not legally required in Canada, at present, anyone can refuse the vaccine.  If someone refuses to take the vaccine at work but later gets infected, they cannot be terminated solely on the basis of refusing to take the vaccine as this would open the employer up to a wrongful dismissal lawsuit.  Regardless of the vaccine, employers need to ensure safety of their employees by ensuring that they follow the public health guidelines, and this should continue despite whether employees have received the vaccine or not until COVID-19 is no longer a health threat.

TPR: What actions should people take to get the government to speed up the process of implementing VISP?

JD: People could speak up and say that we need this program. I cannot wait to see Canada have our population or whoever wants to get the vaccine be vaccinated. We got the vaccine. We need more, but we also need people to take the vaccine knowing they have the assurance of this fund available if there are unfortunate significant adverse effects. It’s really promoting awareness. If Canadians are silent on the issue, we will not see change. We will not see the program roll out fast enough.

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Michelle Chermaine Ramos is a multidisciplinary artist and multimedia journalist focusing on arts, culture, spirituality, martial arts and news that impact Filipino-Canadians. She has profiled prominent entrepreneurs and trailblazers in the diaspora. E-mail mailto:pitchmichelle@gmail.com for news tips or book recommendations.