PHOTO: George Avraam is a lawyer at Baker MacKenzie and co-counsel for McMaster University
Avraam, who practises at Baker McKenzie, says this is the first case in the Ontario courts to deal with the issue of mandatory vaccine policy on the merits instead of through injunctive relief. “It was the absolute best decision. One never knows what COVID is going to do in September. Who knows, maybe there’s another variant, you just don’t know.”
Law Times previously reported that the Justice Centre for Constitutional Freedoms challenged McMaster University’s decision to remove four students from their programs for refusing to take the COVID-19 vaccine on religious and conscience grounds. Initially, the applicants claimed the university breached their human rights and the Ontario Human Rights Code by denying them an exemption based on creed.
In Lise Michalski vs McMaster University, the applicants amended their notice of application, removing the Charter claims and requests for declaratory relief. Instead, they sought a judicial review of McMaster’s decision not to grant their exemption requests because the university’s decisions were unreasonable and breached the duty of fairness.
The applicant submitted expert evidence on Catholic canon law, the efficacy of vaccines in preventing and reducing the spread of COVID-19 and the risk of increased exposure from unvaccinated and asymptomatic students on campus.
McMaster submitted expert evidence on the advantages of in-person learning, the efficacy of COVID-19 vaccines and booster shots in combatting infection and reducing illnesses, and the epidemiologic value of vaccine mandates in post-secondary education.
The university submitted a report highlighting the health risks posed to students, staff, and faculty if unvaccinated students were permitted to attend the campus in person. McMaster also outlined the source of HEK-293 – the human embryonic kidney cell line used in COVID vaccine testing, and the global use of HEK-293 in academic, pharmaceutical and biotechnological research and production. Finally, the university provided an outline of the structure and authority of the Roman Catholic Church and the pope and Vatican’s position on vaccinations.
The court wrote that the applicant’s abandonment of their Charter and Human Rights Code claims rendered much of the voluminous application record irrelevant and admissible.
The university did not question the devoutness of the applicants’ Christianity or the sincerity of their religious objection to abortion. However, the court wrote that it found an insufficient nexus between their religious beliefs and their unwillingness to receive a COVID-19 vaccine.
“The university rejected their requests because it concluded that their objection lies in their personal views that the pandemic is not a grave public health situation and that the vaccines have not been proven effective and may have unanticipated adverse effects…The fact that none of the applicants submitted evidence that they refrain from taking other vaccines or from using pharmaceutical products that have been tested on HEK-293 cell lines confirmed the validation’s team suspicion that the applicants’ objective to COVID-19 vaccination is not religiously based.”
The students argued that McMaster breached its duty of procedural fairness because it did not inform the student the university would deregister them. They argued that the university’s vaccination policy is unclear about the severe consequences of a denied exemption request. However, the court noted that no evidence suggests they might have been vaccinated had they known about the consequences.
The divisional court examined McMaster’s procedural choices, including planning an imminent return to in-person learning amid a global pandemic, emerging new COVID variants and shifting public health guidelines and decided that the university met procedural safeguards.
The court supported McMaster’s submission that the duty of procedural fairness in the case did not require them to instruct students on how to support creed-based exemption requests. “The process followed by the validation teams did not resemble judicial or quasi-judicial decision-making, so McMaster’s duty of fairness is not likely to encompass the protections typically afforded to litigants who appear before an adjudicative tribunal (e.g. notice and disclosure requirements, right to counsel, right to cross-examine witnesses, right to oral submissions).”
The Intervenor for the Council of Ontario Universities also submitted that McMaster’s governing statute gives the university significant governing autonomy in its affairs. “The absence of an internal right of appeal does not constitute a denial of procedural fairness in the circumstances of this case,” the court wrote. “The process created by the university was fair; the students had an obligation to put their best foot forward.”
The court noted that the applicants’ claims lacked the proper evidentiary record for judicial review and that the Human Rights Tribunal was the appropriate forum for the claims to be adjudicated. “The applicants’ procedural fairness arguments lack merit and are not a basis for this court to adjudicate a claim that should be made before the HRTO.”