Arbitration Awards Religious Exemption

Jun 27, 2022 | Freedom Forum

The following editorial was previously published by The Lawyer’s Daily.

Religious or conscientious objectors to the COVID-19 vaccine have paid a high price for their principles over the last year in Canada. Many lost jobs (even when working from home) or were “unenrolled” from university (even with online classes). Others missed precious, once-in-a-lifetime events, like a family wedding or the birth of a distant grandchild, because they were not allowed to fly or take a train.

These deprivations were meant to convince them to be vaxxed. But someone who is willing to lose their job on the basis of religious conviction is not likely to be “persuaded” by such harsh punishments. This is precisely why free societies have, at least until now, been willing to accommodate matters of conscience: because history has shown us that when it comes to faith, compulsion does not change hearts and minds. Tolerance for different beliefs is the surest way to maintain civil peace; mandating a single orthodoxy — whether that be in matters of faith, science, or politics — only tends toward conflict.

In this context, there comes a ray of hope in the form of a decision by arbitrator Robert J. Herman. Herman awarded an Ontario nurse a religious exemption from the vaccine mandate imposed by the Public Health Sudbury & Districts (PHSD). The unnamed nurse in this decision claimed a religious exemption on the basis of “creed” within the meaning of the Ontario Human Rights Code.

Out of 559 PHSD employees, she was the only one to have filed for an exemption. (Note there were two others who violated the PHSD’s vaccine mandate by not getting the vaccine; she was the only employee who submitted a “COVID-19 Vaccination Declination Form” accompanied by an affidavit claiming an exemption under the Human Rights Code.) Given what we know of the virus and the vaccine, there was no indication that accommodating her lone request — perhaps with remote work, rapid testing, or other protective measures — would have been a threat to the PHSD’s laudable goal to protect the health of employees, students and volunteers. Nor does there seem to have been any research into the matter. Regardless, at law, the nurse was entitled to assert her right not to be discriminated against because of her religious creed.

She sent in the appropriate documentation on Oct. 1, 2021, and four days later she was denied “on the basis that an employee’s singular belief against vaccinations does not amount to creed” (para. 30) under the Code. Her rejection was not unique. A wide swath of employers — government and private — took the very same approach, often with the very same wording, toward other applicants for an exemption.

Consider, again, that PHSD has hundreds of employees. Only one — one! —  made a request for a religious exemption and that was denied because the PHSD did not accept her religious beliefs as she articulated them. This raises a very serious question as to the authenticity of the entire PHSD religious exemption process. It seems reasonable to conclude that it was very narrow in focus and meant to discourage the granting of any exemptions, since not a single employee was deemed worthy of accommodation.

The nurse’s lawyer wrote a response on her behalf to PHSD stating that she was a believing, practising and observant Roman Catholic. Her pastor also provided a letter attesting to her religiosity. PHSD refused to budge.

The arbitrator observed that the nurse “was consistent and straightforward in most of her testimony;” from his perspective, her religious sincerity was not in question. As a devout member of the “more traditional and more orthodox” Latin Mass community (para. 8), she could not take a vaccine that was developed in part by the use of fetal cell lines that were harvested from aborted children. She testified that she did not generally research what other medicines used fetal cell lines, as normally she has no need of such medicine. Nor did she research the vaccines she administered as part of her nursing career since “she was not being asked to take those vaccines into her body” (para. 12).

On the opposing side of the discussion, PHSD went to great lengths to question the nurse’s integrity. For example, she was questioned about her membership in its health plan, which provides coverage for contraceptive devices. She responded that she had declined the plan, and “that there is a material difference when she is being asked to put something in her body” (para. 13; see also para. 33).

PHSD also referenced statements from the Canadian Conference of Catholic Bishops and the Pope encouraging church members to take the COVID-19 vaccines. However, the nurse noted that such “exhortations did not represent official Church doctrine, and the Church and its Latin Mass community still permitted members to make individual decision about getting vaccinated” (para. 26). Importantly, the Latin Mass community emphasizes that such a decision must be “consistent with the Latin Mass view that using contraception and abortion are against God’s will and the rules of the Church” (para. 9).

On this issue, the arbitrator rightly observed that the Supreme Court of Canada’s Amselem decision requires the nurse to demonstrate that her request for accommodation has a nexus with her religious creed such that the belief or practice in question is obligatory to her individually (Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551). It “does not depend upon what religious leaders suggest or whether an individual’s actions are in conformity with the position of religious officials” (para. 48). Then it must be determined whether her “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” (para. 9).

Herman said it mattered not that she had other objections to the vaccine. Rather, “as long as one of the reasons is sincerely and legitimately based upon one’s creed, as subjectively interpreted and applied, an applicant would be entitled to an exception under the Code and the vaccine policy itself” (para. 50). He noted that once the nurse was aware of the fetal cell line connection, “that would be sufficient grounds for granting her request for an exemption” since she “sincerely believes that her faith does not allow her to get vaccinated” (para. 50).

In conclusion, the arbitrator noted that the nurse’s evidence of “her religious beliefs and how she has generally conducted her life according to her faith is credible” (para. 57). He accepted her claim that to take the vaccine “would in her mind amount to condonation of, cooperation with, or participation in abortion” (para. 59).

Very few religious claimants have received exemptions from the COVID-19 vaccine mandates, at least in Canada. Generally speaking, arbiters have been reluctant to question the necessity, efficacy or reasonableness of the mandates. Courts, for example, have declined to question the “science” and, instead, have willingly deferred to the “expert” public health bureaucracy.

However, this decision does suggest it is time to re-evaluate some of the assumptions that have allowed the administrative state to override the religious and conscientious beliefs of Canadians.

Rights exist even in times of crisis. Indeed, as some have argued (e.g. Ryan Alford, in Seven Absolute Rights: Recovering the Historical Foundations of Canadas Rule of Law) it is precisely in times of crisis that certain rights — such as the inviolability of the individual and freedom of conscience — must be respected. 

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