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Since the start of the pandemic in early 2020, a number of changing health protocols have been put into place to limit the spread of the virus and keep people safe, including mask mandates, lockdowns, and travel restrictions. Now that much of the Canadian population is vaccinated, the provincial and federal governments are exploring ways to allow businesses to remain open safely to those who are better protected from serious illness. One of the most significant measures is the introduction of a vaccine passport, or vaccine certificate system, which will enable those who are fully vaccinated to participate in more high-risk, yet non-essential, activities, including going to gyms, movie theatres, and indoor dining at restaurants.

In Ontario, the system goes into effect on September 22, however, some have already expressed concern that the method of proof is vulnerable to fraud, especially while the province awaits an app-based certificate which is expected later in October.

Paper Proof Vulnerable to Fraud

Ontario currently provides vaccinated residents with a paper receipt, in the form of a downloadable PDF document. Until the province makes a more high-tech process available, this receipt, along with photo identification, will serve as the sole means for proving one’s vaccination status. Back in August when the plan was announced, the province indicated that the paper receipt would suffice as proof in the absence of a government-issued vaccination card.

At the time, many people raised concerns that the receipt is easy to manipulate, including Dr. Shabnam Preet Kaur, a forensic document examiner with Docufraud Canada:

If you want to manipulate that PDF, that document with no security features, with a plain background, that can be very easy to manipulate. You can add or delete stuff into it using Adobe Photoshop or there are a number of softwares online that are free.

There were calls for the government to issue cards with security features, similar to the provincial Health Card, or a QR code, that would be more difficult for potential fraudsters to manipulate. However, the provincial Health Minister, Christine Elliott, said this was unnecessary. Comparing a potential vaccine card to the former red and white Health Cards, Elliott said they would pose a greater fraud risk than the paper receipts.

The province is currently working on an app-based QR code, which will allow businesses to scan the code prior to entry, to confirm the holder’s vaccine status. Legitimate medical exemptions are expected to be included in the app’s functionality, so those who cannot receive a vaccination for medical reasons would not be denied entry. Notably, the paper form of proof will still be acceptable even after the app is in use.

Fraud Already an Issue in Canada and the US

Canada has already been dealing with individuals using fraudulent travel documents in order to travel to Canada by air. Earlier in the summer, two travellers, both Canadian citizens, arriving in Canada from the U.S. by air were found to have used forged vaccine certificates and proof of testing at the airport in Toronto. The pair were each fined just under $20,000 once the fraud was discovered.

In the US, people have been charged after using social media and other means to sell fraudulent vaccine cards to individuals including health care workers and teachers, to get around mandatory vaccine policies in place for certain professions in various states.

Medical Exemptions Provide Opportunity for Professional Liability Claims

In addition to concerns about forged proof of vaccination, there is a growing concern around medical notes providing exemptions from vaccine mandates as well as mask mandates in public places. In Ontario, there are only two legitimate medical exemptions from the vaccine certificate system:

  1. The first is an allergy to any component of the vaccine, which must be confirmed by an allergist or immunologist.
  2. The second is if the individual suffered from myocarditis or pericarditis, both forms of heart inflammation, after the first dose of a vaccine. In these cases, individuals will be exempted from receiving a second dose.

With respect to public mask mandates, individuals may be granted a medical exemption in the following cases:

  • If they have a medical condition that inhibits their ability to wear a face covering
  • If they are unable to put on or remove their face covering without assistance
  • If they are receiving accommodations according to the Accessibility for Ontarians with Disabilities Act, 2005 or the Human Rights Code

The exemptions for masks are less strict and open to broader interpretation, however, there is concern that exemptions could be forged or that medical professionals could provide exemptions to those who do not need them. Just recently, a doctor in York Region was said to be distributing mass exemption notes to the mask mandate for anybody who requested one. Since then, the clinic where the doctor worked has indicated that he had “decided to pause his practice for now”.

Medical professionals who issue exemptions without a legitimate cause could find themselves facing claims of misconduct from the College of Physicians and Surgeons of Ontario.

For Unparalleled Legal Representation in Civil Fraud Matters Contact Milosevic Fiske LLP in Toronto

If you require legal guidance with a civil fraud or professional liability matter, contact Milosevic Fiske LLP. Our highly experienced litigation lawyers help our clients see through the dense forest of even the most complicated disputes. We excel at cutting through the underbrush and guiding clients to a creative, cost-effective solution.  Call us at 416-916-1387 or contact us online to learn more about how we can help.