Four Legal Questions About Ontario University Vaccination Policies

October 2021

1. What legal authority exists for requiring disclosure of personal medical information such as vaccine status?

Ontario universities are now requiring students, faculty, and staff to indicate whether they are vaccinated against Covid, and to provide proof of vaccination in order to be permitted onto campus. Under section 38(2) of the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), universities are forbidden from collecting personal medical history of identifiable individuals “unless the collection is expressly authorized by statute … or necessary to the proper administration of a lawfully authorized activity.” Normally, universities are prohibited from collecting the personal medical history of students, faculty, and staff under this section.

The question is whether that situation has now changed. Collection of such information is not expressly authorized by statute. Universities may claim that it is “necessary” at the present time on the grounds that they are authorized, and indeed required, to collect vaccine status due to the existence of a pandemic (although the declaration of an “emergency” was rescinded by the Reopening Ontario Act) and because of the instructions issued by the Chief Medical Officer of Health (“CMOH Instructions”) on August 30 and contained in the Postsecondary Education Health Measures Framework (“the Ministry Framework”) released on August 31. These documents direct universities to have a vaccination policy and to report to the government on the number of people who are vaccinated.

However, the CMOH Instructions and the Ministry Framework also say that universities may allow for those who are not vaccinated or do not wish to disclose proof of vaccination to instead attend an educational session about the benefits of Covid vaccines and then be tested on a weekly basis. The Ministry Framework states, “As part of their vaccination policies, PSE institutions may choose to allow individuals who do not provide proof of being fully vaccinated against COVID-19 to come onto campus if they provide proof of having completed an educational session, approved by the PSE institution, about the benefits of COVID-19 vaccination prior to declining vaccination for any reason other than a medical reason.” Many universities have chosen not to grant this option, but it is open for them to offer it if they wish to do so.

In Cash Converters Canada Inc. v. Oshawa, the Ontario Court of Appeal said that for the collection of information to be “necessary” under s. 38(2), the institution must show that each specific item is necessary, and that “where the personal information would be merely helpful to the activity, it is not ’necessary’ within the meaning of the Act. Similarly, where the purpose can be accomplished in another way, the institution is obliged to choose the other route.”

Since the CMOH Instructions and the Ministry Framework provide for an alternative to providing proof of vaccination, collecting such proof from every individual would appear not to be “necessary” for the proper administration of its lawfully authorized activities under section 38(2). Therefore, a requirement to indicate vaccination status and to provide such proof could be contrary to the provision.

2. What is the health and safety rationale for requiring vaccination?

The Center for Disease Control (CDC) in the United States and the UK Public Health Authority have advised that Covid vaccines do not prevent people from becoming infected or from transmitting the virus to others. (This is presumably why various public health authorities continue to require masks even when people are vaccinated – despite evidence that masks do not prevent the spread of the virus.) Therefore, even if vaccination provides protection from serious symptoms for a time, vaccinated persons are as much a threat to others as unvaccinated persons. Therefore, the health and safety rationale for requiring vaccines on campus is not clear.

3. Why is natural immunity from having recovered from Covid not recognized?

The current scientific evidence is that natural immunity, which results from having recovered from Covid, is at least as effective and long lasting as the vaccine. Since natural immunity serves the same purpose as vaccination, and the rationale for university vaccination policies is to protect health and safety, it is not clear why those policies do not allow people who have recovered from the virus to forego vaccination.

4. If Covid vaccines are safe, why will universities not accept legal responsibility for adverse events suffered by individuals who would not have taken the vaccine but for the university’s requirement?

Deciding whether to take a vaccine is a personal medical choice that involves an assessment of risks and benefits. University policies require people who would not otherwise have chosen to get vaccinated to do so. Public health authorities and universities advise that Covid vaccinations are safe. Yet pharmaceutical companies have been granted immunity from liability and universities have predictably declined to accept legal responsibility for side-effects or adverse events, whether minor or serious, suffered by these individuals. Further, it is not clear whether long-term disability health insurance provided to university employees will cover injuries resulting from taking vaccines approved on an interim basis.