Canada: Court Sides With McMaster University In Vaccine Mandate Dispute

Michalski v McMaster University, 2022 ONSC 2625 is the first Ontario court decision to address a challenge to the merits of a public sector COVID-19 vaccination policy. This case helps clarify the procedures that public entities must follow when assessing exemption requests and continues the trend of courts deferring to COVID-19 measures.

McMaster's vaccine mandate

In response to the COVID-19 pandemic, McMaster University implemented a temporary vaccination policy. Unvaccinated students were unenrolled from both in-person and remote courses and were prohibited from physically attending the campus. McMaster did not expel or suspend unvaccinated students; unvaccinated students could re-enroll in classes once the mandate was lifted¹.

McMaster's policy allowed for exemptions. To obtain an exemption, a student had to demonstrate the existence of a protected ground under the Ontario Human Rights Code. McMaster established administrative teams to adjudicate the exemption requests, one of which was mostly dedicated to requests on the basis of creed (equivalent to religion). This team was provided with internal documents outlining how to adjudicate a claim and the types of evidence that were required to substantiate one. The team was also provided with a document summarizing the possible reasons an exemption could be denied and provided with sample language an adjudicator could use to deny a claim.

The exemption requests

Four McMaster students sought individual exemptions from the policy, arguing that their decision not to be vaccinated was protected under the ground of creed in the Ontario Human Rights Code. The students' most significant argument was that their religions would not permit them to accept vaccines which may have been tested using a cell culture derived from an elective abortion².

McMaster denied the exemption requests. McMaster found that there was an insufficient nexus between the students' professed religious beliefs and an inability to be vaccinated. It provided each student with a similar rejection letter using language selectively copied from the internal adjudication documentation.

The exemption requests

Four McMaster students sought individual exemptions from the policy, arguing that their decision not to be vaccinated was protected under the ground of creed in the Ontario Human Rights Code. The students' most significant argument was that their religions would not permit them to accept vaccines which may have been tested using a cell culture derived from an elective abortion.².

Divisional Court defers to McMaster's decisions

The students sought judicial review of the denial decisions. Initially, the applicants challenged the vaccination policy under the Canadian Charter of Rights and Freedoms, but they subsequently narrowed their claims to: (1) whether McMaster's decisions were reasonable and (2) whether McMaster breached the duty of fairness it owed to the students.

The Divisional Court agreed with McMaster on both issues.

Adjudicating the first claim, the Court declined to engage in a substantive review. Instead of reviewing the exemption decisions on the merits, the Court held that the Human Rights Tribunal of Ontario was the more appropriate forum for the students to bring the claim. Ultimately, the applicants' case turned on whether McMaster had improperly interpreted the Human Rights Code. Because the Human Rights Tribunal has expertise interpreting the Code and could have received and considered more evidence, the Court found that the Tribunal would have been an adequate alternative forum.

Turning to the second claim, the Court held that McMaster owed its students only "relaxed and rudimentary procedural requirements" because the exemption decisions were not quasi-judicial in nature and the students could continue their education once the mandate was lifted.

In light of this conclusion, the Court addressed the student's specific allegations of procedural unfairness. It found that the process followed by McMaster was fair.

First, the students were informed before submitting the exemption requests that they could be unenrolled if their requests were denied, so McMaster had met its notice obligations to the students. Second, the onus was on the students to support their claims with all available evidence, so the university was not required to disclose internal documents describing the kind of evidence necessary to support a claim. Third, the internal adjudication documentation (which included a template rejection letter) did not reflect bias or fetter the decision-maker's discretion – the impugned documents constituted tools used to simplify the adjudication process, which was acceptable given the volume of expected exemption requests. The Court also held that even though the reasons given consisted almost entirely of sample language from internal adjudication documents, they were adequate.

Takeaways

Michalski provides a first look into how courts will deal with institutional approaches to adjudicating vaccine mandate exemptions. The decision shows that a systemized administrative adjudication process with template decision-making language can uphold the duty of procedural fairness, especially where institutions expect to process a large number of applications.

The case also represents another failed attempt to challenge public sector COVID-19 decision-making. Although the Court did not undertake a substantive analysis of the university's vaccine mandate on the basis of the Charter or the Code, the Court's decision to uphold McMaster's exemption refusals continues the trend of courts deferring to government and public sector decisions related to managing COVID-19³. Applicants challenging COVID-19 measures continue to face an uphill battle in courts.

This article was originally published in The Lawyer's Daily.