by Mina Karabit June 15, 2022 4 min read

Although not within the employment context, a recent ruling from the Divisional Court suggests that challenges of a mandatory vaccination policy should be adjudicated by the HRTO, not the courts.

Religious Exemption Sought to Mandatory Vaccination Policy

In Michalski v. McMaster University, four students, who are devout Christians, objected to McMaster University’s mandatory vaccination policy and applied for a religious exemption. They argued that they hold a sincere belief that taking a COVID-19 vaccine is immoral and contrary to their religious faith. Amongst other reasons, their concerns with the vaccine were the use of fetal cell lines in the production or testing of the vaccines.

McMaster University denied their exemptions. The University noted that it does not question the devoutness of the Applicants’ Christianity or the sincerity of their religious objection. However, it found that there was an insufficient nexus between their religious beliefs and their unwillingness to receive a COVID-19 vaccine.

In reaching its decision, the University provided its decision-makers with tools to respond to exemption requests. These tools included guidelines for assessing creed-based exemptions derived from the Ontario Human Rights Commissions’ definition of “creed.” When faced with an objection based on the use of fetal cell lines in the development or testing of the vaccine, the University decision-makers were instructed to consider whether there was evidence showing that the person had refused common pharmaceuticals like Tylenol, Advil, Aspirin, Aleve, and Pepto-Bismol. All these common, over-the-counter medications used fetal cell lines in production or testing phases — although the University did not expressly solicit the information.

The applicants sought a court order quashing the University’s decisions and remitting their exemption requests back for reconsideration with the benefit of the Court’s Reasons.

Divisional Court Declines Judicial Review

Ultimately, the Court declined to exercise its discretionary jurisdiction for judicial review because the Human Rights Tribunal of Ontario (HRTO) presented an “adequate alternative forum.” The Court noted that while this application was “strategically framed” as an argument about the reasonableness of McMaster’s decision, the Applicants were “effectively asking this Court to rule on whether [McMaster] correctly interpreted the meaning of ‘creed’ under the Human Rights Code” (the Code).

In reaching this decision, the Court highlighted the factors that supported the conclusion that the HRTO is the more appropriate forum for the Applicants’ claims to be adjudicated:

  1. the nature of the errors alleged by the Applicants (e., a misinterpretation of the meaning of “creed” in the Code);
  2. the relative expertise of the HRTO in matters of religious freedom and discrimination based on creed;
  3. the capacity of the HRTO to render a remedy comparable to that which the Applicants are seeking;
  4. the economical use of judicial resources as the HRTO would be able to receive and consider the voluminous expert evidence that had to be excised from the Application Record.

The Applicants argued that the Court should conduct a judicial review because the Court was able to accommodate a hearing on an expedited basis. In contrast, the HRTO process would have been slower. Understandably, the Applicants wanted to have their claims decided before the next academic year in September 2022.

The Court noted that while delay is a relevant factor, it does not offset the other factors in determining whether to exercise discretionary jurisdiction. Moreover, the Court relied on the fact that there is an avenue for obtaining an expedited hearing before the HRTO and the availability of an interim remedy under the HRTO’s Rules of Procedure.

Although the Court declined to answer the central question, its Reasons also suggest that it did not have concerns about McMaster University’s interpretation of ‘creed’ under the Human Rights Code or the processes and tools implemented to make decisions.

The Applicants argued that as the University had developed documentation to support the denial, but not approval, exemptions were suggestive of bias. The Court dismissed this argument, finding that the guidelines and other documents did not feter the decision-makers’ discretion or lead them to “rubber stamp rejections of creed-based requests.” “The decision-makers were provided with appropriate tools to complete their task, including external [Ontario Human Rights Commission] documents and internal documents developed in consultation with subject-matter experts. The documents set out the relevant criteria for what constitutes a “creed” within the meaning of the Human Rights Code and instructed the [decision makers] to apply those criteria.”

Key Lessons

Although not dispositive of the ultimate question about COVID-19 vaccination policies, the case contains a few takeaway lessons:

  1. The Court will not hear challenges where a more appropriate forum exists. Human rights challenges to mandatory vaccination policies should be made by expert adjudicators: the Human Rights Tribunal of Ontario.
  2. In developing mandates, entities (e.g., universities, hospitals, employers, etc.) should implement tools with appropriate guidelines to achieve consistent decisions. These tools should be consistent with the relevant legislation, including the Ontario Human Rights Commission documents and the Human Rights Code.

This blog post is not an adequate substitute for legal advice, especially as legal issues surrounding vaccination policies are highly context-dependent. The team at Wise Health Law are experts in understanding and navigating the challenging health care landscape. Please contact us as we may be able to assist. 



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