Public Health Sudbury & Districts v Ontario Nurses’ Association, 2022 CanLII 48440 (June 7, 2022) (R Herman) is a new labour arbitration decision out of Ontario where a nurse successfully claimed a COVID-19 vaccination exemption on the basis of her Creed / Religion.
This case is important because there are still relatively few cases dealing with employee human rights in the context of COVID-19 vaccination mandates. This is one of the only cases where an employee has been successful with an argument like this. This case is based out of Ontario, but would be considered persuasive authority in Alberta Human Rights as well.
Facts
Below are the pertinent facts found by the Ontario Labour Arbitrator:
- The grievor employee was a nurse;
- The employer introduced progressively more stringent vaccination policies. Under the final one, anyone not vaccinated by a certain date would be placed on unpaid leave unless they had a valid exemption;
- The grievor was not vaccinated. She requested an exemption on the human rights basis of religion / creed: (1) she was a devout Roman Catholic, participating in the more stringent orthodox “Latin Mass” community which is opposed to abortion and contraception, (2) the COVID-19 vaccines were derived from or manufactured using aborted fetal cell lines or aborted fetal cells themselves, and (3) for her to get a COVID-19 vaccine would force her to participate in or condone abortion;
- The employer rejected her exemption request on the basis that it was a “singular belief” and not part of Roman Catholicism.
Analysis / Conclusion
The Arbitrator started out the analysis by quoting the leading case on religious accommodation, Syndicat Northcrest c Amselem, 2004 SCC 47, and went on to summarize the rule as follows:
44 The impact of this decision is that the grievor must demonstrate that she has a practice or belief, that has a nexus with her creed, that calls for a particular line of conduct, here the decision to not get vaccinated, “either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.” To meet the requirement that an applicant must establish a link between the conduct in question and his or her creed, the Court has therefore determined that a “subjectively engendered” personal connection with the divine or one’s spiritual faith is sufficient. [underline added]
The Arbitrator then went on to apply Syndicat c Amselem to the facts in this case. Some relevant parts of the analysis are as follows:
48 Although the Roman Catholic Church leadership urges members to get vaccinated and has concluded that doing so would not be condonation of, cooperation with, or participation in abortion, as the Court stated in Amselem, the issue initially to be determined does not depend upon what religious leaders suggest or whether an individual’s actions are in conformity with the position of religious officials. What is required is a nexus with the religion or creed, a relationship with an overarching system of beliefs of the religion or creed. That is present here, for Latin Mass is opposed to abortion and contraception. The fact that the Latin Mass community takes the position that each member must as a matter of their own conscience determine whether getting vaccinated is condoning, cooperating with, or participating in abortion does not render the decision merely a preference or a singular belief, separate and apart from the overarching doctrine of the Latin Mass community. The individual decision about what one’s faith requires of a member to avoid condoning, cooperating with, or participating in abortion remains a decision about how a member interprets and applies their faith, and has a nexus to the individual’s creed.
49 That is not the end of the inquiry. There remains the question of whether the grievor’s refusal to get vaccinated is sincerely based upon or connected to her concern that her faith and her relationship with God would be harmed if she were to agree to get vaccinated, or whether her decision to refuse the vaccines is not in fact based upon reasons related to her creed. As the Court said in paragraph 56 of Amselem, the issue is whether the grievor “is sincere in his or her belief”.
The arbitrator noted that there were some parts of the grievor’s testimony that posed challenges to the sincerity of her belief that getting a COVID-19 vaccine violated her religious beliefs, including:
- She was opposed to receiving the COVID-19 vaccines before she was aware that many of them were derived from research on aborted fetal cell lines
- After finding out that these vaccines were derived from research on aborted fetal cell lines, she did not look into what other medications she was taking that might also be derived from research on fetal cell lines
- As a nurse, she had administered many medications to patients that were derived from aborted fetal cell line research, and did not have a problem with that
Nevertheless, the Arbitrator found that the grievor’s religious / creed opposition to the COVID-19 vaccines was credible and sincere, as she had demonstrated that she was a devout and observant member of the Latin Mass, and there was no reason she could not be opposed to the COVID-19 vaccines for more than one reason.
As a result, the grievor was entitled to a religious / creed exemption from COVID-19 vaccination.
My Take
The guidance so far of the various Canadian provincial Human Rights Commissions on the subjects of religious / creed exemptions for COVID-19 vaccinations has seemed quite a bit narrower than what the majority in Syndicat Northcrest c Amselem, 2004 SCC 47 directed.
I think the reasoning in this decision much closer to Syndicat. This decision will likely be controversial, but I would say that will not be because it applies Syndicat incorrectly. It will be controversial more likely for political reasons, or perhaps the argument that Syndicat should be revisited.
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