Robert Taylor, senior litigator with Levitt Sheikh Employment and Labour Law in Toronto, has represented individuals terminated from their employment for not getting the vaccine. He says of all the grounds for vaccination refusal, the religious exemption angle is the most difficult to succeed on.
However, in this case, the decision was made by an arbitrator as opposed to an Ontario court, and that could be problematic for someone trying to cite this case moving forward..
“Arbitrators aren’t bound by other arbitrator’s decisions,” said Taylor. “Courts sometimes also find arbitral decisions to be persuasive so it remains to be seen whether other arbitrators will follow or not follow this arbitrator’s decision or whether courts will or will not follow it.”
The ruling in June by arbitrator Robert Herman concluded that Public Health Sudbury discriminated against the unnamed nurse who is a member of a conservative “Latin Mass” group of Catholics. Her employment was terminated for not being immunized. Herman did not pass judgment on whether she should be reinstated or receive any other reward.
The basis of her creed-based objection to the COVID-19 vaccines was the use of fetal cell lines in their research. Her belief was that to receive one of the vaccines in these circumstances would be to condone, cooperate with or participate in abortion.
That goes up against what the Vatican has been saying about the COVID vaccine, however. In December 2020, the Vatican stated that it was morally acceptable for Catholics to take the vaccine, explaining why doing so would not be inappropriate cooperation with abortion as the connection with fetal tissue was too remote.
In March 2021 the Canadian Conference of Catholic Bishops (CCCB) issued a note stating, “Catholics are invited to get vaccinated, both in keeping with the dictates of their conscience and in contributing to the common good by promoting the health and safety of others.”
This is consistent with previous statements from the Vatican which found that Catholics could ethically receive other vaccines with remote connections to fetal cell lines.
In her defence, the nurse included a letter from the pastor of her Latin Mass congregation. The pastor stated the immunization refusal is within their purview and in accordance with the precepts of their faith.
The Archdiocese of Toronto says people should have the freedom of conscience when deciding whether to be vaccinated against COVID-19 and has encouraged employees and employers to have honest and charitable discussions about the issues surrounding vaccination status in the workplace. The diocese has not been issuing exemption letters.
“The Archdiocese of Toronto, along with most other North American dioceses, has not been providing religious exemption letters from the COVID-19 vaccine, because there is no prohibition against receiving the vaccine in the Catholic faith,” said the diocese in a statement.
Taylor says, though religious exemption is a narrow line to argue, despite the papal statement on vaccination, argument on religious grounds might be stronger for Catholics compared to other faiths based on the strong religious stance against abortion. As the virus continues to evolve and vaccination mandates have lifted, arguments for wrongful dismissal overall may be stronger today.