Justice denied | Barry W. Bussey
Thursday, June 16, 2022 @ 11:10 AM | By Barry W. Bussey
|Barry W. Bussey|
Sowell’s pithy observation rings true for Elise Michalski, a PhD student at McMaster University. Elise is an outstanding student and a member of multiple committees and programs related to sustainability and innovation, including MacChangers and the Bay Area Climate Change Implementation Team. She has supported over 30 other students in their respective research projects and has published four peer-reviewed research articles while still a student. Her work earned her the 2020 McMaster Alumni Association Hamilton Community Impact Award, along with a Vanier Canada Graduate Scholarship worth $150,000.
Obviously, this young lady is motivated, intelligent and involved.
She is also a devout adherent of the Catholic Church. So, when the university adopted a COVID-19 vaccine mandate in September 2021, Elise could not comply. Her conscientious convictions meant she could not take a vaccine that was developed or tested using cells from an aborted child.
Elise spent a week crafting an articulate request for accommodation. Having completed everything but her thesis, she was prepared to study from home to finish her doctorate. But in a standardized e-mail from McMaster’s Vaccine Validation Team, she was informed that her religious exemption request was considered “in good faith” and denied. In part, the university bureaucrats concluded that, because Pope Francis encouraged Catholics to be vaccinated, Elise’s position was inconsistent with her church’s teachings and was simply a “singular belief” rather than a “creed” which would merit accommodation. (As records become available in the future, it will be worth studying just how “in good faith” these bureaucrats were, given the fact that universities across the country seem to have relied on the same boilerplate responses with eerily similar forms, language, and decisions — a striking unanimity for institutions of critical thought.)
The problem with this approach is that religious freedom in Canada is an individual right. Although religious practice has communal aspects, the right to freedom of religion does not hinge on whether certain beliefs “are objectively recognized as valid by other members of the same religion,” as the Supreme Court of Canada stated in 2004 — “nor is such an inquiry appropriate for courts to make” (Syndicat Northcrest v. Amselem 2004 SCC 47). The court’s role is only to determine the sincerity of an individual’s beliefs, not the doctrinal soundness of her views.
Ontario Divisional Court
Elise was one of four applicants to a court action to overturn McMaster’s vaccine mandate, handled by the Justice Centre for Constitutional Freedoms. Her legal team decided that it was faster to apply to the Divisional Court for judicial review rather than use the much slower route of the provincial human rights apparatus. Time was of the essence for Elise and her fellow applicants.
Unfortunately, the three-member panel of the Divisional Court insisted that, while they had discretionary jurisdiction to rule on the reasonableness of the university’s decision, they would not do so because “there is another process available to the Applicants that is more appropriate for the adjudication of the claim” (para. 11) (Michalski v. McMaster University 2022 ONSC 2625). In other words, the proper place for the first hearing was the Human Rights Tribunal of Ontario, which could better address the “allegation of creed-based discrimination” (para. 67).
The time-sensitive nature of the case did not seem to concern them. The court argued that the issue of speed “does not offset the other factors that weigh in the balance” (para. 75). Yet, to the hearts and minds of the students involved, a swift resolution was the most important factor of all. Their entire educational and professional lives were at stake. From the court’s perspective, however, the “negative impact of unenrollment” should not be “overstated” (para. 84).
Normally, the court’s decision not to take jurisdiction would be the end of the matter. Yet here, the court carried on by delving into the substantive arguments of the judicial review application.
The court outlined the various templates provided by the university, including boilerplate responses pre-empting various objections to the COVID-19 vaccine. The materials quoted suggest the court was more sympathetic to the university’s position. For instance, the court did not question the relevance or fairness of McMaster’s expectation that applicants defend their position by stating their views on other medications such as Aspirin or Tylenol, which allegedly also used abortion-related material in their development. Given that the university did not disclose this requirement, it would seem unjust to deny accommodation based on evidence that was not requested or mentioned. How exactly were students supposed to divine what the university wanted? And how could their consciences be pricked or their sincerity called into question over something they did not know?
In assessing the procedural fairness and reasonableness, the court noted that the McMaster evaluation process “did not resemble judicial or quasi-judicial decision-making;” therefore, its duty of fairness would not feature the “protections typically afforded to litigants who appear before an adjudicative tribunal” (para. 80). Second, the court accepted that the university was not required to have an adjudicative process (para. 81). Third, the “institutional constraints” and the “broader factual and social context” — i.e., having to follow public health orders, working under time constraints, and facing a “flood of exemption requests” — meant the university had to create a streamlined process (para. 82).
“[W]e conclude that the university owed a duty of fairness to the Applicants,” said the court, “but one with only rudimentary procedural requirements” (para. 85). Even though students were not told what supporting documentation would be relevant or required, the court held that “there is no evidence that the lack of disclosure resulted in any procedural unfairness in this case” (para. 91). According to the court, the students had “an obligation to put their best foot forward” (para. 90).
As to bias — another requirement for procedural fairness — the applicants argued that the Validation Team was only trained to deny requests, not to determine bona fides. They pointed out there was a “Denial Rationale document, but no comparable Approval Rationale document” (para. 95). The court was “not persuaded by these arguments” as the documents “did not fetter the decision-makers’ discretion” but rather “strengthened institutional decision-making by encouraging consistency” (para. 97). According to the court, “there is no evidence that the Validation Team treated all creed-based exemption requests as spurious or failed to give the Applicants’ requests proper consideration” (ibid).
In short, the court declared it would not use its discretion to take jurisdiction of the case, then proceeded to make a 27-page decision dealing with virtually all the points it would be required to address if it took jurisdiction. The court implied that taking jurisdiction would be a waste of time and resources, then spent considerable time to write and process a decision that could have been given in 10 sentences.
Why? Given the details of the decision, it is apparent that the court had little sympathy for the applicants or their religious beliefs. Their concerns and losses were downplayed as inconsequential compared to the extraordinary pressures that the University faced in dealing with the pandemic. In essence, the court used its platform to buttress McMaster’s process and thereby pre-empt any further litigation on the matter — at least on judicial review issues.
Given that virtually all the universities and colleges in Ontario followed the same process, this decision seems to affirm that the legal system “has their back.” Religious students, on the other hand, have not fared so well. This decision is further evidence of a disconcerting trend of refusing to accommodate religious practice in Canada — a trend which has only intensified during the COVID-19 pandemic. I have called it a “Legal Revolution” for a reason.
The denial of due process by the Divisional Court in this case — the failure to recognize the hardship of the students — is, in short, a denial of justice.
Barry W. Bussey is president and CEO of the First Freedoms Foundation. He has served as intervener counsel in a number of high-profile cases and has written extensively on law, politics and religion.
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at firstname.lastname@example.org or call 647-776-6740.