It was a duel of provincial laws in court Monday as five students argued a privacy statute should bar Western University from enforcing a COVID-19 booster mandate, and Western saying it has the authority under its own provincial legislation.
The students’ request for a permanent injunction against Western’s third-dose requirement, heard by Ontario Superior Court Justice Kelly Tranquilli, hinges on the legal interpretation of a provincial privacy statute and not on whether Western’s third-dose requirement violates the Charter rights of staff and students.
The students contend Western lacks the authority 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Ontario Act requiring post-secondary institutions to implement mandatory COVID-19 vaccination policies has been repealed.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 group argues Western doesn’t have the authority under Ontario’s Freedom of Information and Privacy Protection Act to collect the data, in the absence of the pandemic emergency legislation.
Further, the collection exception built into the act for personal information that is “necessary to the proper administration of a lawfully authorized activity” does not apply, the students contend.
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“Proof of vaccination is not necessary in order for universities to continue their activity of providing education to their students,” London lawyer Lisa Bildy, counsel for the five students, said in court Monday.
“This school year is quite different from the last one” when the province’s emergency legislation forced colleges and universities to adopt COVID-19 vaccination policies, she said.
But Western’s counsel, Nadia Effendi, argued Western has broad powers under the University of Western Ontario Act, the provincial legislation governing the school. Lawyers for the university claim that implementing a vaccination policy falls within its power under the legislation.
“Universities, like other institutions, are engaged in a multitude of activities,” Effendi said in the virtual hearing. “There’s also no debate that Western has health and safety obligations towards its students and generally people on its campuses.”
Further, Effendi said collecting personal information through proof of vaccination is necessary for the administration of the immunization policy, because COVID-19 vaccination status is “not something you can see when you look at someone.”
The proper question for the court, she said, is not whether the booster mandate is necessary, but whether the collection of personal information is necessary to administer its vaccination requirement, which it contends is within its power to enact.
Western announced Aug. 22 it would require third doses for staff and students this school year. University administration set a deadline of Oct. 1 for students and staff to provide proof of their booster, but later extended the deadline until Jan. 9 to give people a chance to get the newly approved Omicron-specific booster dose.
The booster policy builds on Western’s two-dose policy from the previous school year. While all adults 18 and older are now eligible for fourth COVID-19 doses, Western’s policy requires a minimum of three shots.
Of the colleges and universities in Southwestern Ontario, Western — and affiliate colleges Huron and King’s — are alone in enforcing a booster mandate, though several high-profile US schools, including Harvard and Yale, have similar policies. London’s hospitals require staff to have only two COVID-19 vaccine doses.
The five students are represented by Bildy, who previously represented Aylmer’s Church of God in some of its early court battles over COVID-19 lockdowns, and counsel from the Democracy Fund, a charity that has provided legal help to people charged with pandemic-related offenses .
Bildy is asking the court to grant a permanent injunction preventing Western from collecting the COVID-19 vaccination status of its students unless it is expressly required by law in the future. She is also asking the court to order the disposal of the COVID-19 vaccination records Western collected last school year and under its booster policy.
Counsel for Western disputed the need for any remedy, but said if one were necessary, a declaration would suffice instead of a permanent injunction. Western’s lawyers also opposed Bildy’s request for disposal of the records.
Tranquilli did not give a date on when a decision would be returned.