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.
What you need to know
- Four students challenged decisions denying them religious exemptions to their university's vaccine mandate.
- The Divisional Court dismissed the students' challenge. It held that the university's process met the “rudimentary” duty of procedural fairness owed to the students. The university did not breach the duty of fairness by using guidance documents and pre-formulated decision language to speed up the process.
- Because the students only challenged their individual exemption decisions, not the vaccine mandate itself, the Court declined to engage in a substantive review of the rejections. The Court held that the Ontario Human Rights Tribunal would have been the more appropriate forum for this dispute.
- Applicants challenging COVID-19 measures continue to face an uphill battle in courts. This case is another example of courts declining to interfere with public policy responses and decisions related to the pandemic.
McMaster's vaccination policy
In response to the COVID-19 pandemic, McMaster University implemented a temporary vaccination policy that required all students to be vaccinated.
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 (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.
Requests for an exemption denied
Four McMaster students sought an exemption from the policy, arguing that their decision not to be vaccinated was protected under the ground of creed in the Ontario Human Rights Code. 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.
Court upholds 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:
- Court declined to conduct substantive review. The Court declined to review the exemption decisions on their merits because it held that the Human Rights Tribunal of Ontario was the more appropriate forum. Having abandoned their Charter challenge to the vaccine mandate, the crux of the applicants' case was that 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 applicants had an adequate alternative forum to bring their claim.
- Decision was procedurally fair.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 lifted1. In light of this conclusion, the Court found that the process followed by McMaster was fair: 1) prior notice of the vaccine mandate was provided to the students; 2) the onus was on the students to support their claims, so the university had no obligation to disclose its internal adjudication documents; and 3) the internal adjudication documentation (which included a template rejection letter) did not reflect bias or fetter the decision-maker's discretion—the impugned documents were simply tools used to simplify the adjudication process, especially given the volume of expected exemption requests. The Court also held that even though the reasons given contained sample language from internal adjudication documentation, they were adequate.
Michalski provides a first look into how courts will deal with institutional approaches to adjudicating vaccination exemptions. The decision shows that a systemized administrative adjudication process with template decision-making language can uphold the duty of procedural fairness in some cases, especially where institutions expect to process a large number of applications.
This 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-192.
1 The vaccination requirement for students was in fact lifted in May of 2022, shortly after the decision was released.
2 See, for example: Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7679; Hudson's Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046; Spencer v. Canada (Health), 2021 FC 621; Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711.
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