Judge rejects students’ challenge of Western University COVID booster rules

Judge rejects students’ challenge of Western University COVID booster rules

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Sep 24, 2022  •  6 hours ago  •  3 minute read Western University's campus (Mike Hensen/The London Free Press) Western University’s campus (Mike Hensen/The London Free Press)

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A challenge of Western University’s COVID-19 booster dose mandate by five students has been dismissed in court.

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The written decision, delivered by Ontario Superior Court Justice Kelly Tranquilli, found Western officials are within their power to enact the COVID-19 booster mandate and collecting personal health data from students and staff is necessary to administer the policy.

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A plain reading of the provincial legislation governing Western shows the university is “expressly and broadly empowered to manage its affairs,” and “may do such things as it considers to be for the good of the university and consistent with the public interest,” the court decision said.

The students’ case hinged on the legal interpretation of a provincial privacy statute and not on whether Western’s booster mandate violated the Charter rights of staff and students.

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Lisa Bildy, the lawyer for the five students, had argued in court Western wasn’t authorized to collect personal health information on vaccination status from staff and students because the regulation under the Reopening Ontario Act requiring post-secondary institutions to implement mandatory COVID-19 vaccination policies has been repealed.

The students contended Western lacked authority to collect the data under Ontario’s Freedom of Information and Privacy Protection Act and an exception built into the act for personal information that is “necessary to the proper administration of a lawfully authorized activity” does not apply.

Bildy argued Western’s “lawfully authorized activity” was to provide post-secondary education, and that imposing a booster mandate fell outside its core directive.

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Counsel for Western argued the school has broad powers under the University of Western Ontario Act, the provincial legislation governing the school, and that implementing a vaccination policy is a “lawfully authorized activity.”

In her decision, Justice Tranquilli sided with the interpretation of the law given by Western’s lawyers.

“Based upon the broad wording of Western’s enabling statute, and the process that Western followed in promulgating its COVID-19 Vaccination Policy, I am satisfied the university has demonstrated that the policy is a ‘lawfully authorized activity,’” the decision said.

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“That the province no longer requires Western to impose a vaccine mandate, or that Western is reportedly the only university in Ontario to impose such a mandate, is of no consequence. Western is expressly permitted to govern its affairs.”

Tranquilli went on to say the collection of personal health information on COVID-19 vaccination status from students and staff is the only way the university can properly administer its immunization policy. “While compliance with a face-masking policy is easily detectable, this is not the case with vaccination status,” the decision said.

The students were seeking a permanent injunction against Western and an order for the destruction not only of the booster dose records submitted this fall, but last year’s COVID-19 vaccination data.

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Tranquilli denied both remedies requested by the students.

If both sides can’t come to an agreement on costs, Western has until Oct. 17 to submit written submissions and the students have until Nov. 1.

The students are represented by Bildy and Mark Joseph of The Democracy Fund, a charity that has provided legal help to people charged with pandemic-related offences.

Western’s booster dose mandate is an extension of its two-dose requirement for students and staff last school year. On Aug. 22, just weeks before the start of the school year, Western announced it would require third doses for staff and students this school year.

The university set a deadline of Oct. 1 for students and staff to provide proof of their booster, but extended the deadline until Jan. 9 to give people a chance to get the newly approved Omicron-specific shots this fall.

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Several Ivy league schools in the United States – including Yale and Harvard – require students to be up-to-date on their COVID-19 vaccines, including boosters. The University of Toronto requires students living in residence to have at least three COVID-19 shots.

Other Ontario universities and colleges, including London’s Fanshawe College and Western affiliate Brescia University, are not requiring booster doses this school year.

Neither St. Joseph’s Health Care London or London Health Sciences Centre have added a booster dose requirement to their COVID-19 vaccination mandates for staff.

Western only requires students and staff have a third dose of the COVID-19 vaccine. People 18 and older in Ontario have been eligible for fourth doses since July.

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https://lfpress.com/news/local-news/judge-rejects-students-challenge-of-western-university-covid-booster-rules

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