Alberta Human Rights: Vaccination Policy Found Reasonable

By: Bryan McHale

Published: 24 June 2024

Calgary Union Labour lawyers at Bow River Law LLP.

In J.R. v University of Alberta, 2024 AHRC 82, mandatory public health measures taken the University of Alberta during the Pandemic were considered reasonable and justifiable.

The reasoning in the JR decision has been well-established in human rights and the civil courts, that in certain situations, group interests can take precedence over individual rights.

Facts

This a section 26 Alberta Human Rights Act (the “Act”) review by Cynthia Dickins, member of the Human Rights Commission (as designated by the “Chief”), of a prior decision by the Director to dismiss a complaint.

The complaint was made under section 4 of the Act, discrimination in the area of goods, services, accommodation or facilities on the basis of religious belief, after the University rejected JR’s application (twice) for an exemption to the mandatory vaccination policy, resulting in JR being denied access to the University training facilities (the Saville Centre).

In brief, the University imposed a mandatory vaccination policy on campus following the declaration of a public health emergency in September 2021. Persons could apply for an exemption to the vaccination policy. JR is a minor and a competitive gymnast training at the University. In October 2021 the mother of JR applied for the exemption which was then denied in November. In February 2022 the University suspended the mandatory policy ending JR’s restricted access.

JR’s family are devout Catholics and JR’s mother is an experienced Catechist teacher. The initial basis for the exemption to the vaccination policy was that the vaccines were allegedly developed using aborted human fetal cell lines, conflicting with the family’s religious and moral beliefs. At the hearing of the section 26 review, additional information was provided clarifying that the vaccines do not contain aborted fetal material, but this material may have been used in the original development of the vaccines. Further, the family’s church provided direction that while there is a general moral duty to refuse medical interventions of this type, such intervention was permissible during the Pandemic. Theological opinion was that vaccines connected with the abortion process must be rejected.

Analysis / Conclusion

A section 26 review allows the Chief to uphold or overturn the Director’s decision to dismiss a complaint based on an initial screening or gatekeeping function applying the stand of review of “reasonable prospect of success”. The review is a fresh assessment and a de novo analysis following a decision by the Director as per section 21 of the Act. A reasonable prospect of success standard is assessed with the following principles:

  1. The overarching question is whether there is a genuine issue that needs to be resolved at a hearing.
  2. Matters that have some chance of success should go on to hearing.
  3. The Chief must accept the allegations of fact as true except to the extent the allegations are based on assumptions or speculations or where they are patently ridiculous or incapable of proof.
  4. The evidence must take the case out of the realm of conjecture

Section 11 of the Act states, “a contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.”

The University argued the complainant’s moral belief did not have sufficient connection to religion, which was rejected by the Chief, holding that the complainant’s beliefs were sincerely held beliefs. Although, the Chief accepted the University’s position that the vaccination policy was reasonable and justifiable in the circumstances as per section 11 of the Act

The Chief referenced the decision in Pelletier v 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192 (“Pelletier”) wherein the Chief also upheld a dismissed complaint under section 26 involving a regular customer of a grocery store who was refused access to the grocery store due to a mandatory masking policy during the Pandemic.  The complainant argued he had a religious (and medical) basis for not wearing a mask stating, “My religious beliefs do not permit me to wear a face mask or face covering of any kind. God created me in his own image and if he cannot see that image because it is covered with a face mask then I have committed sacrilege.” The complainant also provided a medical note that stated he was exempt from wearing a mask. The Chief ultimately relied on section 11 of the Act. Notably in Pelletier, the Chief stated, “… there is no protection in the Act for political thought or freedom of conscience. There is protection from discrimination on the ground of religion, but that concept is narrower than thought or conscience.”

In concluding that despite the complainant having a protected characteristic, the mandatory vaccination policy was reasonable and justifiable, and the Chief confirmed the policy was adopted by the University in good faith.

My Take

The caselaw has tended to find that the pandemic was a public health emergency justifying limits on individual rights. The government is empowered to reasonably limit our freedoms particularly when foreseeable personal harm or safety is at risk. Even so, trampling on individual rights must be done respectfully, contextually and proportionally otherwise it would be unreasonable and unjustifiable. For JR, he was able to train at another facility and the restricted access was only a few months. Arguably, the practical limitations on JR were minimal allowing him to exercise his choice to not be vaccinated, therefore a reasonable infringement on his personal freedoms.

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