Fanshawe College, in London Ontario, have once again found themselves in the hot seat over their aggressive and rigid Covid policies.
Fanshawe was the subject of a previous post after being called out for enforcing their mandatory vaccination policy against staff who worked entirely remotely.
That case went to arbitration where it came to light that the college was apparently ‘overwhelmed’ in their efforts to sort remote staff from those who attended campus; an effort that would have allowed them to apply Covid policies more fairly, based on these work agreements. Given their failure to do so, the arbitrator ruled their policy unfair in its application.
The current case involves an employee who had applied for a legitimate religious exemption to the vaccination policy. He was denied and subsequently placed on leave without pay (LWOP) for an extended period.
The case went to arbitration, with the Ontario Public Service Employees Union (OPSEU) representing the Fanshawe College employee.
Arbitrator Sheri Price issued her ruling, indicating that Fanshawe College had violated both the employee’s Charter rights as well as their human rights.
The primary issue identified was Fanshawe’s application of the vaccination policy after June, 2022, when efficacy waned against the Omicron variant. Most businesses had followed the federal government’s lead, in reinstating staff who had been placed on LWOP, by July 1st of 2022.
While many of us knew that the efficacy of the Covid vaccines were questionable from day one, the vaccine policies have been fully supported through our justice system until this arbitrary date of June 2022, after which they suddenly become unacceptable. However, prior to this arbitrary date, all infringements of our Charter rights, provided they were implemented under the catch-all excuse of Covid-19, have been deemed by our courts to be ‘justifiable’.
Price’s ruling centered on Section 7 of the Charter (life, liberty, and security of the person) and Section 2 (freedom of conscience). Price determined that the policy infringed on Section 7 by undermining bodily autonomy and medical choice, as vaccines ‘no longer significantly curbed transmission’ after June, 2022.
Fanshawe’s claim that unvaccinated employees still created a risk in the workplace was found to be unjustified.
Price also identified violations of Section 2 of the Charter, since the mandate clashed with employees’ sincerely held religious beliefs. Price emphasized that Charter rights limited the college’s authority, once public health justifications had weakened.
The second issue identified by Price spoke to infringements to the employee’s human rights and again pointed to Fanshawe’s blanket policy and unwillingness to consider exemptions.
On this aspect, Price’s ruling addressed protections under the Ontario Human Rights Code, particularly that of accommodation for creed and disability. Some employees had sought exemptions based on religious or medical grounds, yet Fanshawe’s blanket policy offered no meaningful alternatives. Price determined this to be a breach of their duty to accommodate since the college had not explored alternative options like testing or remote work. By not doing so, they had disproportionately impacted those applying for exemptions under these protected characteristics.
Price ordered Fanshawe College to pay the affected employees all lost wages and benefits for the period between July 1, 2022, to December 31, 2023.
We appreciate Price’s detailed review of the individual rights afforded these employees, and her just ruling in favour of these rights. Her ruling reflects the growing scrutiny of vaccine mandates, both under our Charter and human rights frameworks.
At the same time, we question the continued claims of these infringements being justifiable, when Canadians have yet to see any scientifically robust evidence of such justification. On the contrary; we have seen more and more evidence opposing the narratives used to justify these aggressive restrictions.
To be clear, while these actions may be ‘justifiable’ (capable of being justified), they have yet to be actually justified (proven correct), as is required by Section 1 of our Charter of Rights and Freedoms.
Without such proof, we remain in a scenario where one simply has to create the emergency needed to justify the restrictions, without ever having to provide robust evidence of the validity of that emergency – a scene we are seeing play out time and again, whenever our politicians wish to subdue the rights of the people.
To read the arbitration decision, click here
