Human Rights Tribunal Denies Application Alleging Discrimination Based on Creed Related to Mandatory Vaccine Policy

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  • November 1, 2022

Human Rights Tribunal Denies Application Alleging Discrimination Based on Creed Related to Mandatory Vaccine Policy

Negina Khalil

On September 29, 2022, in Brown v. Planet Fitness (Dundas), the Human Rights Tribunal of Ontario dismissed an application alleging discrimination based on creed with respect to a mandatory vaccine policy.

The decision was made following a hearing in writing. The applicant alleged that they were denied access to the facility because of the mandatory vaccine policy instituted by the respondent. The applicant stated they were exempt from the policy based on their creed which they stated was “based on conscientious mindset.”

The Supreme Court of Canada test in Syndicat Northcrest v. Amselem, 2004 SCC 47 (“Amselem”), sets out that protected beliefs are those that have “a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith.”

While the Human Rights Code of Ontario (the “Code”) itself does not define creed, the Ontario Human Rights Commission has enacted a policy recommending that the following characteristics are relevant when determining if a belief system is a creed under the Code. A creed:

  • Is sincerely, freely and deeply held
  • Is integrally linked to a person’s identity, self-definition and fulfilment
  • Is a particular and comprehensive, overarching system of belief that governs one’s conduct and practices
  • Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence
  • Has some nexus or connection to an organization or community that professes a shared system of belief.

The applicant argued that the use of fetal cells in the development of various vaccines raised concerns within the Catholic Church but made no clear connection to how this related to their stated creed of “conscientious mindset.” The Tribunal found that the applicant’s case did not meet the definition of creed and held:

“Accepting that the applicant’s belief may be sincerely, freely, and deeply held and accepting that it may even be linked to the applicant’s identity and self-definition, there is no basis on which I could determine that it meets the other criteria required to be considered a creed.

 I note that the applicant’s creed lacks an overarching systemic component. I also note that it does not address the question of human existence or that of a Creator, nor contemplate life and death. I further note that it does not form a nexus to any organization or community with a shared system of belief, notwithstanding the mention of the concern of the Catholic church, as the applicant did not indicate they are a member of that faith community.”

 A recent British Columbia arbitration decision published on October 13, 2022, British Columbia Rapid Transit Co. and CUPE, Local 7000 (Marzhakov),  2022 CarswellBC 2901, also dealt with the issue of religious accommodation in the context of COVID-19. The case involved a grievance challenging the employer’s decision to refuse to grant the grievor a religious-based accommodation in relation to its COVID-19 mandatory vaccination policy. In this case Arbirator Noonan concluded that the grievor sincerely and honestly held a strong religious belief that vaccinations interfered with his relationship with God and concluded that he was entitled to be accommodated.

The grievor testified that he believed that his body belongs to God and that it is against God’s will to alter it. He believed that God provides everything we need so that “we can heal ourselves.” In applying the same Amselem analysis outlined in the above-noted Ontario decision, Arbitrator Noonan found that the grievor’s refusal to be vaccinated was based on his sincerely held religious belief that it was wrong for him to be vaccinated. There was no evidence that the grievor adopted his religious view of vaccinations in response to COVID-19 or as a mere pretense to avoid vaccination for political or other secular motives. The grievor had never in his life been vaccinated or inoculated and it was clear that his religious beliefs were the driving force, not only in relation to the issue of vaccinations, but also in relation to how he lived much of his life.

Arbitrator Noonan held that the human rights cases cited by the Employer were distinguishable on their facts insofar as the panels hearing those cases determined that the real basis for the decisions made by the parties claiming religious accommodations was not religious in nature, but rather that the decisions were driven by secular considerations.

While not all interference with religious freedom will attract human rights protection, as identified in Amselem. In this case, the interference was more than trivial or insubstantial. The Employer’s policy required the grievor to either violate his sincerely held religious beliefs by being vaccinated or being held out of his job and suffering the consequences that accompany that.

In another British Columbia case, The Worker v. The District Managers2021 BCHRT 41, the BC Human Rights Tribunal evaluated whether an employer had contravened the British Columbia Human Rights Code by denying an employee entry because he refused to wear a mask on religious grounds. The Tribunal applied the Amselem framework and found that the employee had not pointed to any facts that could support a finding that wearing a mask was objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith” Rather, his objection to wearing a mask was his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19. The Tribunal reiterated that the Code does not protect people who refuse to wear a mask as a matter of personal preference. The Tribunal concluded that the employee’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion.

Previous decisions related to religious exemptions also applied the test in Amselem. In Public Health Sudbury & Districts and Ontario Nurses Association, 2022 CanLII (48440) (ONLA) discrimination was established based on an employer denying an employee’s religious accommodation request to its mandatory vaccination policy. In this case, the grievor was a nurse who identified as a member of the Latin Mass community and claimed that her faith prevented her from receiving a vaccine due to the use of fetal cell lines in the vaccine research and development. Arbitrator Herman held that the grievor sincerely believed that getting a COVID-19 vaccine would be inconsistent with her faith and concluded that the employer discriminated against the grievor when it denied her an exemption from the vaccination policy.

In Nova Scotia Nurses Union and IWK Health Centre, 2022 CANLII 57410 (NSLA) the grievor was a nurse in the neonatal intensive care unit who claimed that she could not be vaccinated due to her Christian beliefs and that forcing people to take the COVID-19 vaccine injection is part of an evil plan. Arbitrator Hollett accepted the grievor’s testimony that she believed the Book of Revelations prophesized the end of times and that the COVID-19 vaccines may be the platform for the Mark of the Beast. Arbitrator Hollett stated the following:

“As long as the Grievor’s subjective belief that she must not take a COVID-19 injection arises from understanding of her personal obligations of her Protestant Christian religion, as I find to be the case, and she is sincere in asserting this obligation, the required nexus to religion is established”

If you have any questions relating to religious exemptions in your workplace, contact our lawyers in our Vancouver or Victoria offices.