Canada: "Each Choice Comes With Its Own Consequences": Superior Court Approves Western's Proof Of Vaccination Requirement

Although the Ontario provincial government no longer requires post-secondary institutions to impose a proof of vaccination requirement on students, COVID-19 vaccination policies have remained a contentious issue on post-secondary campuses. On Friday, September 23, 2022, Ontario's Superior Court of Justice provided some clarity on the lawfulness of collecting proof of vaccination information from students.

In Hawke v. Western University¹, the Court found that the University of Western Ontario's vaccination policy, which requires all students to demonstrate that they have received a complete primary series of the COVID-19 vaccine and a booster dose unless they are subject to an accommodation, does not violate the Freedom of Information and Protection of Privacy Act (FIPPA). FIPPA protects the privacy of individuals with respect to personal health information about themselves held by institutions.

What you need to know

• Rare proof of vaccination case at first instance. Although there have been many labour arbitration decisions addressing the implementation and maintenance of COVID-19 policies (most of which have upheld the reasonableness of mandatory COVID-19 vaccination and testing policies at work), as well as guidance from the Information and Privacy Commissioner of Ontario, this is one of the Ontario Superior Court's few decisions addressing a challenge to a COVID-19 vaccine mandate and proof of vaccination requirement². It is also one of the first rulings from this later stage of the COVID-19 pandemic³.
• Focus of the Court's decision. This application focused on whether Western's collection of proof of vaccination for the purpose of implementing and enforcing its COVID-19 vaccination policy violates section 38(2) of FIPPA.
• Coercion vs. choice. Despite the limited focus of the Court's decision, Justice Kelly Tranquilli made a powerful statement about the interplay between coercion and choice in the COVID-19 vaccination context. Her Honour held that the university's vaccination mandate was not coercive, as the choice to comply with Western's COVID-19 vaccination mandate is "the individual's to make. Each choice comes with its own consequences. That is the nature of choices".

Background

On August 22, 2022, Western announced its decision to update and continue the previous year's vaccination mandate. The policy requires the university community to submit proof of vaccination for the 2022-2023 academic year. Students who fail to submit proof of vaccination risk various sanctions, up to and including suspension or expulsion.

This application asked the Court to determine whether the University of Western Ontario can lawfully collect proof of vaccination from its students in order to implement and enforce the university's COVID-19 vaccination policy. The Court determined that collecting students' proof of vaccination does not violate section 38(2) of FIPPA.

The parties' positions

The applicants' argument

The application was brought by five Western students who alleged that collecting proof of vaccination was not necessary to Western's activities, because the province no longer requires proof of vaccination on post-secondary campuses. Moreover, they argued that Western is an "outlier" in Ontario's post-secondary community by continuing to enforce a COVID-19 vaccination mandate. The students were also upset that Western announced its decision to continue the vaccination policy into the 2022-2023 year after tuition was due and students had made financial commitments for the academic year.

The applicants sought (i) a declaration that the policy is a violation of section 38(2) of FIPPA and that Western has no lawful authority to collect, copy, store or use students' personal vaccination or medical information; (ii) a permanent injunction preventing Western from requiring students to provide proof of, or to attest to, their COVID-19 vaccination status as a condition of enrollment or attending campus; and (iii) an order requiring the university to dispose of personal vaccination and medical information already collected from students pursuant with the COVID-19 vaccination mandate.

Western University's argument

Western argued that the ability to deliver consistent in-person education and campus services during the COVID-19 pandemic is directly connected to the availability and efficacy of health and safety measures, including vaccinations. It alleged that Western had the legal authority to issue its vaccination policy and that collecting proof of vaccine information was necessary for the implementation and enforcement of the policy.

The Court's decision

The Court accepted Western's argument and declined to grant any of the applicants' requested relief. Justice Tranquilli stated that as an "autonomous self-governing body", Western may govern its affairs separately from the province and other post-secondary institutions. That the province no longer requires Western to impose a vaccine mandate was of "no consequence" to the legal analysis. Likewise, how other post-secondary institutions have decided to manage their operations in this phase of the pandemic is not determinative of the necessity of Western's proof of vaccine policy.

The collection of proof of vaccination is essential to the implementation and enforcement of the vaccination policy. Justice Tranquilli accepted that there is no alternative to collecting COVID-19 vaccination information from the university community in order to administer the COVID-19 vaccine mandate. Her Honour further accepted Western's argument that collecting proof of vaccination is necessary to the university's decision-making as it continues to offer in-person classes and services. This information is not merely helpful data that could have been gathered through some other means; it is the one way that Western can make informed, evidence-based decisions regarding its in-person operations during this phase of the pandemic.

Coercion vs. choice

In seeking to justify their request for a permanent injunction against Western, the students emphasized the "coercive" nature of the university's COVID-19 vaccination policy. They raised concerns about the danger of losing an academic year if they do not provide their health information to the university and complained about the timing of the 2022-2023 policy, which was announced after tuition was due and the students had already made living arrangements and other financial commitments for the academic year.

Justice Tranquilli dismissed the latter concern on the ground that the school's 2021-2022 COVID-19 vaccination policy expressly stated that it would be reviewed no later than September 1, 2022, which Western complied with by announcing the policy extension on August 22, 2022.

Her Honour also commented on the role of choice for students regarding the university's vaccination policy, writing:

I do not accept the Policy will "force" members of the university community to disclose their personal information. The policy forces individuals to choose between two alternatives, even if they like neither option. The choice is the individual's to make. Each choice comes with its own consequences. That is the nature of choices.

The Court found that just as students can choose whether to comply or not with the university's COVID-19 vaccination policy, post-secondary institutions may continue to choose to collect proof of vaccination information for the purpose of implementing and enforcing vaccination policies which are integral to the safe and sustained operation of in-person classes and campus services during this phase of the pandemic.

Takeaways for vaccination policies

Hawke provides some insight into how courts will deal with COVID-19 vaccination policies at this stage of the pandemic. The decision shows substantial deference to organizations in imposing mandates, even when comparable government mandates no longer exist. Employers and other organizations should continue to monitor and keep apprised of vaccine mandate decisions as they move through the courts through the balance of 2022 and into 2023.