In Costas et al. v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111, handed down on August 24, 2022, the applicants Mariana Costa and Crystal Love, two students, sought an interlocutory injunction to prevent the respondent Seneca College from enforcing against them its policy requiring all students who attend Seneca’s campus to be fully vaccinated for Covid-19 (the “Policy”). The injunction application was dismissed.
The students were not vaccinated and expressed unwillingness to receive Covid-19 vaccinations. The expressed fear of risks of Covid-19 vaccines, and concerns about the uncertainty of long‑term consequences of the vaccinations. They believed to be at low risk of life-threatening illness from Covid-19, and both decried the unfairness of being “coerced” into taking the vaccine. They claimed that the Policy violated their rights to freedom of conscience, life, liberty, security of the person, privacy and equality under Sections 2(a), 7, 8 and 15 of the Charter. Seneca College argued, represented by noted employment lawyer Howard Levitt, that the Policy was necessary, appropriate and reasonable measure to protect the health and safety of the thousands of people attending Seneca College’s campuses.
The Court stated, at para. 47 that “in my view the application of the Charter to Seneca’s actions is somewhat uncertain, I proceed below assuming, arguendo, that the Charter applies.”
Although the Court accepted that practically speaking, an injunction would effectively be permanent, the Court set out the test:
[48] Proceeding on that same premise, the applicants assert that they satisfy the well-established three-part test for an interlocutory injunction set out in the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, namely:
(a) whether there is a serious issue to be tried;
(b) whether irreparable harm would result to the applicants if the injunction is not granted; and
(c) whether the balance of convenience between the parties favors granting the injunction.
With respect to section 2(a) of the Charter:
[62] Fundamentally there is no evidence of, nor even an attempt to show a comprehensive moral code or value system yielding a foundational belief that requiring vaccinations is “wrong”. Indeed, Ms. Love, as a pre‑condition of entering her program, agreed to and received a vaccination for Rabies. The evidence shows that there are rare but serious risks of the Rabies vaccine, including the risk of death. Ms. Love does not articulate how it is that requiring her to take the Rabies vaccine, with its attendant risks, is not “coercive” whereas requiring a Covid-19 vaccination is. Indeed it appears to be the case that, if the applicants believed that the risks of Covid-19 vaccinations were known and limited – which neither of them appears to accept – their “conscientious” objections to being vaccinated would fall away.
[63] While I accept that refusal of certain medical procedures or treatments can be genuinely grounded in conscientious or religious beliefs, I do not find such a basis in the record before me and accordingly, I cannot find that the applicants’ s. 2(a) rights have been violated.
Turning to section 7 of the Charter, the Court stated:
[84] In discussing his conclusion rejecting the union’s arguments in reliance on Section 7 of the Charter, the arbitrator said:
Section 7 of the Charter protects an individual’s right to decide: whether or not to be vaccinated. The Policy does not require mandatory vaccination. The Policy does not violate anyone’s life, liberty or security of the person. It does not mandate a medical procedure or seek to impose one without consent… The Policy had an impact on TDSB employees who decided not to attest and/or get vaccinated, but there is no basis to conclude that life, liberty or security of the person is in any manner impaired by the Policy and by the choices individuals make. Employees are not prevented in any way from making a fundamental life choice… The law is settled: Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision… Individuals have no Charter right to pursue or maintain a chosen profession.
[85] While these conclusions are not binding on me, I find them apt and applicable to the claims before me.
[86] Again, I cannot find in the evidence before me a violation of the applicants’ rights under Section 7 of the Charter.
The Court did not find much more traction in the submissions under section 15:
[94] The applicants fall well short of showing that they cannot be safely vaccinated, or that the act of doing so would tear asunder immutable or even deeply held beliefs. Rather, their evidence amounts to expressing a preference, in light of risks they perceive based on minimal investigation of the relevant science, not to be vaccinated. Again, that is a choice they can make but not one which in my view, attracts or requires Charter-based protection.
The Court dismissed the motion, concluding:
[103] Returning to the RJR analysis, for the reasons set out above I find that the applicants have failed to establish a strong prima facie case, which as I have found they must do here in order to succeed on the first prong of RJR.
[104] With respect to irreparable harm, the evidence shows that the harms the applicants allege – diminishing memory of their courses, emotional distress, and earning a lower income while waiting to complete their courses – are exaggerated or misstated, are in large measure self‑made, and are not in any event irreparable in that they are quantifiable in monetary terms or can be cured.
[107] Finally, in terms of balance of convenience, the Court must consider which party would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits of the overall case. In this regard, I must consider public interest, and the costs and benefits of preserving or setting aside the status quo.
[108] It is clear, and the applicants acknowledge in their evidence, that Seneca (like other public institutions), must take health and safety measures to protect people attending on its campus.
[109] In Sinai Health, Akbarali J. held that the balance of convenience and particularly the public interest weighed in favour of maintaining a mandatory vaccination policy and against the request for an injunction. Her Honour noted the medical evidence that the vaccines provide “a higher level of protection than regular antigen testing would afford” and accepted TTC’s evidence that based on “its experience, and the best scientific and public health information available …it would face greater risk to the health and safety of its workforce and its riders if it is required to permit unvaccinated employees to continue to attend the workplace”. Akbarali J. found, and I agree (substituting Seneca for the TTC), that by acting in compliance with public health guidance, TTC conducted itself in a fashion which the Court must assume is “in the public interest, especially in a pandemic”: at para. 107.
[110] In my view, the public interest in minimizing the risk and consequences of Covid-19 by requiring attendees at Seneca’s campus to show proof of vaccination substantially outweighs the interest of the applicants in avoiding the vaccinations in question, particularly given the difficulties in the applicants’ evidence concerning their reasons for, and impact on them of the choice they have made.
The motion was dismissed.