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Superior Court rejects students’ challenge of Western University COVID-19 policy

A student walks towards the Western University campus in London, Ont., on September 15, 2021. Nicole Osborne / The Canadian Press

The Ontario Superior Court of Justice rejected a challenge by five Western University students to withdraw the institution’s COVID-19 booster vaccine mandate.

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Justice Kelly Tranquill said in a written decision that “Western is expressly permitted to govern its affairs” despite the province lifting masking mandates as Ontario’s chief medical officer of health (CMHO) still encourages post-secondary campuses to continue implementing COVID-19 vaccination policies “as part of overall ongoing health and safety requirements for their institutions.”

She added that how other post-secondary institutions, among other organizations, decide how to manage their operations does not 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.

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On Aug. 22, Western introduced its updated COVID-19 policy, which includes the requirement that all attendees have received at least one booster shot.

The controversial decision, on top of requiring mandatory masking in classrooms, prompted mixed reactions from students, while the union representing the institution’s faculty association praised the move.

Students, faculty and staff are required to submit current proof of vaccination by Oct. 1.

The five students — Simon Hawke, Tiana Gleason, Michael Puzzo, James Donalds and Ashante Camara — were seeking an injunction, filed by their lawyers Lisa D. Bildy and Mark A. Joseph on Wednesday, to block the university from requiring students to provide proof of a COVID-19 booster vaccine to attend campus and enroll in classes.

They alleged that by collecting students’ personal medical information, Western is therefore violating the Freedom of Information and Protection of the Privacy Act [FIPPPA] and argued that it was not identified as “lawfully authorized activity,” as stated in section 38(2).

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In seeking to justify their request for a permanent injunction, the students emphasized what they characterize as the “coercive” nature of the policy in forcing the disclosure of otherwise private health information.

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Tranquill stated that she does “not agree with the applicants’ characterization of the Policy as being ‘coercive’ in nature,” not accepting that the policy will “force” members of the university community to disclose their personal information.

“They raise concerns about the danger of losing their academic year if they do not provide their private information by way of proof of vaccination,” she wrote.

“They raise additional concerns of the fairness of this coercion, given the late timing of Western’s announcement of the continuation of the Policy, after tuition was due and the students had made living arrangements and other financial commitments for the year.

“The Western University Act plainly establishes the university as an independent, autonomous, self-governing institution that is empowered to oversee its administrative and academic affairs,” stated the court documents.

Tranquill highlighted that Western underwent a formal review of its policy for the 2021-2022 school year before implementing their recent guidelines.

“Its review included consultation with university stakeholders and other universities,” she said. “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.”

While Tranquill emphasized and “acknowledged the applicant’s frustration” with the policy after students had already paid their tuition for the fall semester, she said that the university’s updates were filed and released within the timeframe before Sept. 7, 2022.

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“The choice is the individual’s to make [and] each choice comes with its own consequences,” she added

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Additionally, Tranquill explained that the applicants also wanted all proof of vaccine information collected by Western to be destroyed, saying that, “the court does not comprehend any reasonable basis for such a broad order.”

The court ruled that Western`s policy does not breach FIPPA.

Despite previously regulated timelines, Western has, however, extended the booster deadline to Jan. 9, 2023, from Oct. 1 in response to Health Canada’s approval of the bivalent COVID-19 vaccine and recent news of its expanded eligibility to those 18 and older.

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