Member of small sect of Roman Catholics worked in health care in Ontario
The recent decision in Public Health Sudbury & Districts v Ontario Nurses’ Association is, to our knowledge, the first time that an employee has succeeded in arguing an entitlement to a creed based exemption to their employer's mandatory vaccination policy.
This exemption has proven difficult for employees to make out, consistent with the Ontario Human Rights Commission's policy statement on vaccine mandates which provides that an individual's personal preferences or singular beliefs with respect to vaccinations do not amount to a creed for purposes of the Human Rights Code.
Background
In September 2021, Public Health Sudbury & Districts (PHSD) implemented a vaccination policy that required employees to be fully vaccinated unless an exemption was otherwise required by the code. Ultimately, PHSD determined that all unvaccinated employees would be subject to a leave of absence followed, potentially, by termination of employment if they continued to refuse to be vaccinated. Employees were advised that claims submitted pursuant to the code regarding medical- or creed-based exemptions would be reviewed and assessed for accommodation.
The grievor, a nurse who worked in health promotion for PHSD (including communicating with members of the public about COVID-19 and vaccinations), requested an exemption based on her religious beliefs. The grievor identified as a member of a small sect of Roman Catholics called the Latin Mass community, which opposes contraception and abortion, believing in the "natural law". The Latin Mass community does not require members to be vaccinated nor does it prohibit them from doing so — it requires individual members to make their own decisions consistent with Latin Mass beliefs.
The grievor believed that because the COVID-19 vaccines used fetal cell lines in their research, to receive one of the vaccines would be to condone, cooperate with, or participate in abortion, contrary to the tenets of her faith.
The grievor submitted personal statements to PHSD outlining her objection to taking the vaccine and also provided letters from her pastor confirming that the majority of the Latin Mass community opposed getting vaccinated, that her beliefs were sincerely and genuinely held, and noting that the Pope's endorsement of the vaccines was not shared by all leaders in the Catholic Church.
PHSD denied her request for an exemption on the basis that an employee's singular belief against vaccinations did not amount to a creed pursuant to the code. She was placed on an unpaid leave of absence and was subsequently dismissed when she continued to refuse to get vaccinated.
Arguments
The union brought a grievance alleging discrimination on the basis of creed. In this regard, the union argued that the real issue was whether or not the grievor had a bona fide belief in a creed and whether that belief supported her exemption request. Even if the grievor's view was factually mistaken, the union argued that if she "sincerely believes it and it is consistent with the creed that she sincerely believes in and follows, she would still qualify for the exemption".
PHSD did not dispute that the grievor was a devout Catholic and had a strong anti-abortion belief which was part of her faith. However, it questioned whether the grievor sincerely believed that taking a COVID-19 vaccine would interfere with the practice of her faith. It alleged that her reasons for not getting vaccinated were unrelated to her faith.
In support of this argument, PHSD set out a number of inconsistencies in her conduct which suggested her objection was not faith based, including that:
- she made the decision not to get vaccinated before she was aware of any connection between the vaccines and fetal cell lines
- when she originally learned, years prior, about fetal cell lines and their use in developing medicines, she took no steps to inquire whether the medicines she and her family were taking had any connections to fetal cell lines at that time
- she had taken vaccines in the past with connections to research using fetal cell lines.
PHSD also submitted that the letters from the grievor's pastor confirmed that vaccination was a personal choice for members of the community.
Decision
In concluding that PHSD had discriminated against the grievor, the arbitrator relied heavily on the decision of the Supreme Court of Canada in Syndicat Northcrest c. Amselem. He noted that, pursuant to this decision, the grievor only had to be able to demonstrate that she had a practice or belief connected with her creed that calls for a particular line of conduct (in this case, not getting 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.”
The arbitrator concluded that the Latin Mass community clearly did have an opposition to abortion, which the grievor was aligned with. He found that the fact that members of the Latin Mass community were allowed to make their own decisions about getting vaccinated did not make the choice a "singular belief", as they had to make that decision in regards to their interpretation and application of their own faith. There was, therefore, still a connection to the individual's creed.
The arbitrator then considered whether the grievor's refusal to get vaccinated was based on her faith, or whether it was for reasons unrelated to her creed. In this regard, the arbitrator noted that "[t]here can be multiple reasons for objecting to getting vaccinated, but 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."
Although the arbitrator acknowledged that there were inconsistencies in the grievor's conduct, as pointed out by PHSD, which "raised questions" about the sincerity of her claim that her faith prevented her from being vaccinated, the arbitrator found it "unlikely" that the grievor had fabricated this claim just to avoid getting vaccinated. Ultimately, he found her evidence about her religious beliefs to be credible and concluded that the grievor had a sincerely held belief, with sufficient nexus to her creed, that to be vaccinated would conflict with her faith.
Key takeaways
This decision appears to suggest that as long as an employee holds a sincerely held belief that is connected in some way to their creed, they will be entitled to accommodation pursuant to the code.
It also suggests a significant amount of deference to employees when assessing their sincerity — in this case, the many inconsistencies pointed out by the employer were still not enough to change the result. Although this decision is in the unionized context, employers will still want to take note, as it may open the doors for more successful exemption claims on the basis of creed.
