Judge rejects attempt by 5 Western University students to block COVID booster mandate

An attempt by five Western University students to block the school's COVID-19 booster shot mandate has been rejected by the Ontario Superior Court of Justice.

In a written decision, Justice Kelly Tranquilli stated that as an independent, autonomous, and self-governing institution, Western can govern its affairs separately from the province, and collecting personal health data from staff and students is its way of implementing the vaccination policy. 

"The collection of proof of vaccine is how the vaccination policy or mandate is implemented and enforced. This court finds the Policy is the product of Western's broad powers of self-government," she said. 

The students — Simon Hawke, Tiana Gleason, Michael Puzzo, James Donalds and Ashanté Camara — alleged that by collecting personal medical information of students, Western is violating the Freedom of Information and Protection of the Privacy Act (FIPPA), arguing that it was not categorized as "lawfully authorized activity," according section 38(2).

They wanted an injunction to block Western from requiring students to provide proof of COVID-19 vaccination to enrol in classes, attend campus "or for any other purpose," and to destroy the existing personal vaccine data they collected to date from earlier in the pandemic. 

Lawyers for the students and the Democracy Fund (TDF) filed for the permanent injunction in a London court on Sept. 7. The civil liberties group, formed last year, says it supports justice for "Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic." TDF funded the legal challenge on behalf of the students. 

Policy 'not coercive' judge says

The students also argued that Western's policy was coercive. Justice Tranquilli disagreed, noting that the university does give students a choice and that they are responsible for the outcomes. 

"They [Western] force them to choose between two options and if they like neither then it's their choice," she wrote. "Each choice comes with consequences, that's the nature of choices." 

Tranquilli said that although the province lifted the regulatory mandate, the chief medical officer of health for Ontario (CMHO) encouraged post-secondary institutions to decide to continue with COVID-19 vaccination policies as part of their overall ongoing health and safety requirements. 

She added that how other organizations, including post-secondary institutions, decide to manage their operations doesn't impact Western's proof of vaccine policy. 

"The conclusion that Western's Policy for this year is justified in part due to the current advice of the CMHO," she said. 

"Western undertook a formal review of its policy for the 2021-2022 school year. Its review included consultation with university stakeholders and other universities. Critically, Western sought the input of several internal and external subject-matter experts of various medical disciplines for advice on issues such as projections for COVID-19 transmission rates in the fall."

Despite empathizing with the students' frustration around Western announcing the policy after students paid tuition for the fall, she pointed out that the university's decision was made within the timeframe before the policy expired on Sept. 7.  

Western's policy is not in breach of FIPPA, the court ruled, adding that it cannot grant an injunction for future vaccine mandates either, as that would depend on the nature of public health guidelines down the road. 

Western has extended the booster deadline to Jan. 9, 2023, citing Health Canada's approval of Moderna's updated bivalent vaccine targeting the Omicron variant.