Few court cases have an immediate impact that can be felt across the country, but one such ruling was pronounced recently by Justice William D. Black of the Ontario Superior Court.
I have often opined in these pages that, in law, safety trumps privacy and companies have the right to require anyone entering their facilities to be vaccinated.
Many argued, lawyers and activists alike, that, to the extent I am correct, that is no longer the case today with the less-virulent Omicron variant.
That view was put to the test in a recent decision in which I acted, with my team, for Canada’s largest college, Seneca, which continued to require everyone on campus to be vaccinated for the fall term that has just begun.
An injunction against its vaccine mandate was sought by Calgary’s Justice Centre for Constitutional Freedom, claiming that such a policy was unreasonable, that Omicron was not a danger and that a vaccine mandate was contrary to the Charter of Rights, violating rights to freedom of conscience, life, liberty, security of the person, privacy and equality under Sections 2(a), 7, 8 and 15 of the Charter.
I have stated that Charter arguments against vaccine mandates were bunk and it was reassuring that the court agreed and dismissed the Justice Centre’s application.
Seneca had been an early leader nationally among institutions in requiring a vaccine mandate. It argued that its policy is a necessary, appropriate and reasonable measure to protect the health and safety of the almost 56,000 people who attend its campuses, almost none of whom had expressed any objection to the policy and many of whom had applauded it for the feeling of comfort and safety that it engenders. This is a view that the majority hold but which is seldom enunciated in public discourse.
In arguing our case, we put forward two top infectious disease physicians, while the Justice Centre proffered an expert report of Dr. Byram Bridle.
In his ruling, the judge highlighted a letter we put forward signed by 88 of Dr. Bridle’s University of Guelph colleagues denouncing his views. “Dr. Byram Bridle has stated on multiple platforms and numerous outlets that COVID-19 vaccines are unsafe. These statements are contrary to overwhelming scientific evidence,” the letter read.
While noting the importance of academic freedom and the importance of dissentient opinion, Justice Black stated that, “particularly in areas in which the court has no pre-existing expertise of its own, the case law compels us to hew closely to well‑supported and well-accepted views.”
On the science, Seneca’s experts, while agreeing that the vaccines provide less protection against Omicron than against the original strain, concluded that there are still substantial benefits, preventing infection and significantly reducing the risk and impact of the virus, if contracted, for the vast majority.
The court noted that, in arguing freedom of conscience, the applicants “do not dispute that there is a legitimate point of view among the vast majority of Ontarians, including a majority of those who attend Seneca’s campus, that prizes the safety associated with vaccinations above the rights of a small minority of people to move among them in an unprotected and potentially infectious state.”
Dismissing the applicant’s argument that a vaccine mandate creates a coercive intrusion on their bodily autonomy, Justice Black referred favourably to a non-Charter decision involving TTC to the following effect: “I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated. It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual’s to make. Of course, each choice comes with its own consequences; that is the nature of choices.”
In obtaining any injunction, a party has to show that they will suffer irreparable harm if the injunction is not granted. Citing again the TTC case, Justice Black turned on its head the Justice Centre’s argument that its members will suffer irreparable harm if the vaccine mandate continued. “If even one (Seneca member) dies or is seriously harmed after catching COVID-19 from an unvaccinated (Seneca member), it will be one too many. That is harm that is truly irreparable,” the judge wrote.
In dismissing the s7 Charter argument, Justice Black finished by citing with approval an arbitration decision of arbitrator William Kaplan: “Seven (s7) does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision.”
Another matter the court must weigh in every injunction application of any kind is the balance of convenience between the parties. On that, the court concluded that “the public interest in minimizing the risk and consequences of COVID-19 by requiring attendees at Seneca’s campus to show proof of vaccination substantially outweighs the interest of the applicants in avoiding the vaccinations in question.”
The impact of this decision is that employers who have vaccine mandates can comfortably maintain them and those who wish to institute them can do so free of fear of an effective legal challenge. Employers will do this for many reasons: to reduce the spread of COVID, because of pressure from employees who do not wish to work amongst the unvaccinated and to be an employer or merchant of choice for employees and customers who may be immunocompromised or otherwise do not wish to be among the unvaccinated.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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