- Constructive Dismissal
- Discrimination / Human Rights
- Employee Sued by Employer
- Employment Contracts: Drafting / Review / Negotiation
- Employment Policy Drafting / Review
- Fiduciary Obligations
- Harassment / Bullying
- Independent Contractors
- Just Cause For Termination
- Non-Competition / Non-Solicitation
- Professional Regulation
- Severance Review / Negotiation
- Union / Labour Law
- Workplace Investigations
- Wrongful Dismissal / Unjust Dismissal
- Our Team
- Call Now: 587-391-7601
- Contact Us
Charter Challenges not Enough to Stop University Vaccine Policy
Costa, Love, Badowich and Mandekic v. Seneca College of, 2022 ONSC 5111 is a new Ontario Superior Court decision where an application to stop a vaccine policy was denied. The Court found that the Applicants’ Charter arguments did not satisfy the requirement to prove a strong prima facie case that they would be successful at trial.
This case is important because it determined that obtaining an injunction to stop a vaccine policy requires proof of a strong prima facie case under the first step of the test set out in RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, instead of the lower-threshold of “a serious issue to be tried” sought by the Applicants. The Court also found that the need to reorient one’s career does not constitute “irreparable harm” to satisfy step two of the RJR test.
The following are the pertinent facts summarized by the Ontario Superior Court in this case:
- Seneca College implemented a policy requiring all students who wish to attend campus to be fully vaccinated against Covid-19 and to provide proof of vaccination (the “Policy”).
- Seneca initially implemented the Policy for the fall semester of 2021. In response, the Applicants elected to take a one-year leave of absence.
- In the summer of 2022, Seneca’s president advised that the Policy would remain in place for the fall 2022 semester.
- The Applicants, in the final year of their respective programs, sought an interlocutory injunction to prevent Seneca from enforcing the Policy against them.
- The Applicants’ primary argument was that in refusing to offer alternative means of accessing Seneca’s campus, the Policy was contrary to instructions issued by Ontario’s Chief Medical Officer of Health, and violated their section 2(a), 7, 8, and 15 rights under the
Analysis / Conclusion
As the Applicants were seeking an interlocutory injunction, Justice Black considered the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, which is (1) whether there is a serious issue to be tried; (2) whether irreparable harm would result to the Applicants if the injunction is not granted, and (3) whether a balance of convenience between the parties favors granting the injunction.
Typically, the first part of the RJR test is a low threshold, requiring only that the application not be frivolous or vexatious. However, certain exceptions exist that raise the standard significantly and require an applicant to demonstrate a strong prima facie case on the merits. Justice Black identified three of those exceptions that applied in the current case:
- Where granting an injunction would effectively amount to a final determination of the issue;
- Where the injunction sought is mandatory rather than prohibitive; and
- Where the injunction is sought to stop the enforcement of a law on the basis of unconstitutionality.
Justice Black found that granting an order would effectively conclude the matter, as the Applicants were in their final year of study and would have no reason to seek further adjudication. He also seemed to agree with Seneca’s arguments that the injunction was “mandatory” in that it would require Seneca to take positive action to remove the Policy that had been in place for many months, with the vast majority of students taking no issue with the mandate.
In R v. Canadian Broadcasting Corp, 2018 SCC 5, the Supreme Court explained that mandatory injunctions require applicants to demonstrate a strong prima facie case, or “clear chance of success,” to satisfy the first step of the RJR test. The SCC reasoned that elevating the standard in such cases is justified, as such orders are often costly, burdensome, and present a higher risk of harm to the defendant when compared to the plaintiff’s risk of awaiting trial.
The Applicants’ alleged that the Policy violated their 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.
Justice Black rejected the Applicants’ arguments under sections 2(a) and 15, finding that they were not grounded in a conscientious or religious belief, nor was vaccination status an enumerated ground protected by the Charter. Concerning Section 8, Justice Black found that choosing whether or not to provide vaccination status was not the kind of illegal search against which Section 8 is intended to protect.
The focal point of the Applicants’ arguments was Section 7. They argued that forcing them to choose between the financial hardships of not finishing their programs and vaccinating amounted to coercion, violating their right to refuse medical treatment protected by Section 7. Considering this argument, Justice Black discussed the recent decision of Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2021 ONSC 7658. While not dealing with a Charter challenge, the court in Toronto Transit Commission discussed the argument of coercion under the “irreparable harm” stage of the RJR test. Justice Black quoted the following paragraphs from the decision:
Fundamentally, 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
Nor do I accept that psychological stress and emotional harm amounts to irreparable harm. Any employee facing termination can be expected to suffer from stress and emotional harm. If that was sufficient to establish irreparable harm, the courts would routinely be asked to enjoin terminations of employment, both within and outside the unionized context
Justice Black also discussed the recent arbitral decision of Toronto District School Board v. CUPE, Local 4400, 2022 CanLII 22110, finding the following comments made by the arbitrator applicable to the current case:
Section 7 of the Charter protects an individual’s right to decide: whether or not to be vaccinated. The Policy does not require mandatory vaccination. The Policy does not violate anyone’s life, liberty or security of the person. It does not mandate a medical procedure or seek to impose one without consent . . . The Policy had an impact on TDSB employees who decided not to attest and/or get vaccinated, but there is no basis to conclude that life, liberty or security of the person is in any manner impaired by the Policy and by the choices individuals make. Employees are not prevented in any way from making a fundamental life choice . . . The law is settled: Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision . . . Individuals have no Charter right to pursue or maintain a chosen profession.
The Applicants ultimately failed to demonstrate that their Charter arguments presented a strong prima facie case, failing on the first step of the RJR test.
First, it should be made clear that this decision was about whether an injunction should be granted, and was not a final determination of whether the vaccination policy violated the Charter. However, failure to obtain an injunction is significant, and this case falls squarely on the pro-vaccination side.
The lack of any religious or conscientious objection concerning their submissions under Section 2(a) and 15, paired with the requirement to prove a strong prima facie case created a challenging argument for the Applicants. Additionally, recent cases considering injunction applications against vaccination policies have found that the loss of employment is insufficient to amount to “irreparable harm” contemplated in the second step of the RJR test: See Lavergne–Poitras v. Canada (Attorney General), 2021 FC 1232. With the Applicants’ main objection based on the inherent unfairness of “forcing” them to choose between taking the vaccine or potentially suffering economic hardship, it is not difficult to see why their arguments failed.
This case is not binding in Alberta because it is from another province. However, there are still relatively few court decisions on the subject and this case could be used as persuasive authority in Alberta.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Michael Hernandez is an employment lawyer at Bow River Law. He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.