The Divisional Court of the Ontario Superior Court of Justice recently dismissed a challenge to the implementation of a mandatory vaccination policy in Michalski v McMaster University.
The applicants, four students who objected to McMaster University's mandatory vaccination policy, had applied for a religious exemption. All four requests for exemptions were denied. The students were subsequently "disenrolled" from McMaster University for the semester.
The university rejected the applicants' exemption requests. The exemption requests were partially based on the use of fetal cells in the testing and/or development of vaccines. The Court summarized McMaster's decision as follows:
In short, McMaster's decision-makers concluded that the applicants are using their sincerely held religious objection to abortion as a pretext to avoid taking vaccines to which they personally object on non-religious grounds. The fact that the HEK-293 cell line is many generations removed from its original source of fetal tissue, and the uncertainty as to whether the original tissue was derived from an elective abortion, both factored into the Validation Team's decisions. 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 Team's suspicion that the Applicants' objection to COVID-19 vaccination is not religiously based (i.e., is not part of an overarching system of belief that governs their conduct and practices).
While not directly applicable to the workplace, the Michalski decision does provide employers with some comfort.
The Court observed that while "strategically framed" as an argument about the reasonableness of the decisions, for the purpose of judicial review, the applicants were "effectively asking this Court to rule on whether [McMaster University] correctly interpreted the meaning of "Creed" under the Human Rights Code". The Court declined to exercise its discretionary jurisdiction for judicial review in this case, on the basis that the Human Rights Tribunal of Ontario (HRTO) presented "an adequate alternative forum."
While the Court "ducked" the central question, it suggests that the Court did not have strong concerns about McMaster University's interpretation of "creed" under the Human Rights Code.
Interestingly, the Ontario Human Rights Commission has already issued a statement generally supporting mandatory vaccination policy. The Commission's statement, which is highly persuasive, but not binding, on the HRTO indicates:
At the same time, the OHRC's position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.
While the Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.
The Court also supported the decision-making tools and documentation to achieve consistency in requests for exemptions from the mandatory vaccination policy. McMaster University's guidelines for assessing creed-based exemptions quoted the Ontario Human Rights Commission's definition of "Creed," which is a belief that is:
- Sincerely, freely and deeply held
- Integrally linked to a person's identity, self-definition and fulfillment
- Part of a particular and comprehensive, overarching system of belief that governs one's conduct and practices
- Addressing ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
- Connected in some way to an organization or community that professes a shared system of belief.
However, "personal beliefs and convictions, political positions, concerns about medical science, etc. are not creed."
McMaster University also instructed decision-makers that if a person based their objection on the use of fetal cells in the development or testing of the vaccine, they should also consider evidence whether the person refused drugs like Tylenol, Advil, Aspirin, Aleve and Pepto-Bismol. All of these common over-the-counter drugs use fetal cells in testing and/or development. This information was not expressly solicited by the University.
McMaster also had developed standard documentation to support the denial, but not approval, of exemptions.
The applicants suggested that these tools and documentations were suggestive of bias. The Court dismissed this argument, finding that:
The decision-makers were provided with appropriate tools to complete their task, including external OHRC documents and internal documents developed in consultation with subject-matter experts. The documents set out relevant criteria for what constitutes a "creed" within the meaning of the Human Rights Code and instructed the Validation Team to apply those criteria.
- Employers should provide decision-makers with checklists or guidelines to help make solid and consistent decisions. These checklists and guidelines should include excerpts from relevant OHRC documents and the Human Rights Code.
- The Court is not interested in hearing human rights challenges to mandatory vaccination policies and wants those decisions to be made by the expert tribunal, the Human Rights Tribunal of Ontario. By refusing to make a decision, even though it had jurisdiction to do so, the Court may be trying to send a signal that in general, it will not interfere with refusals to provide exemptions based on religion or creed, where there has been a defensible approach.
- While the Court refused to make a substantive decision on the creed exemption, it is noteworthy that it did not criticize the university reviewing whether there was behaviour in the past consistent with the grounds for the basis of the exemption, e.g. prior vaccine refusal or refusal to consume drugs that also used fetal cells in testing and/or development.
Legal issues surrounding vaccination policies and human rights exemptions are highly context-dependent, and the analysis will vary depending on many factors, including the specific industry, the workplace, and the individual employee. If you have concerns about vaccine policy implementation and human rights exemptions, please connect with the author or contact any lawyer in Gowling WLG's Employment, Labour and Equalities group.
 2022 ONSC 2625 ("Michalski")
 Michalski at paras 53-53.
 Michalski at para 72.
 Michalski at para 23.
 Michalski at para 96.