Tessa Johnson Vs. Thompson Rivers University: Discrimination On The Grounds Of Religion

The Complainant, Tessa Johnson, claims that the Respondent, Thompson Rivers University (“TRU” or “the “University”) has discriminated against her in the area of employment, on the ground of religion, contrary to s. 13 of the Human Rights Code (the “Code”). Ms. Johnson was regularly employed by TRU from late September 2017 to June 2022.  She states her employment with TRU was terminated due to her standing up for her religious beliefs which she asserts could have been accommodated by the University. 

TRU is a public university operating in the Kamloops and Wiley Lake regions of British Columbia.  It ordinarily employs in excess of 1,000 individuals. The Complainant was employed by the University as an Early Childhood Educator  (“ECE”).  TRU denies any discrimination contrary to the Code and it claims it was only enforcing clear health and safety regulations in accordance with the Occupational Health and Safety Regulation,  pursuant to the  Workers Compensation Act, R.S.B.C. 1996, c. 492. (the “WCA”) TRU asserts that it did not terminate Ms. Johnson because of her religion but it admits it advised her that they required her to be vaccinated against Sudden Acute Respiratory Novel Corona Virus 19 (“Covid-19”).   TRU asserts it has met the bona fide occupational requirement test because Ms. Johnson should not be at work with vulnerable and unvaccinated children unless she is properly protected through vaccination and they could not accommodate Ms. Johnson when children’s safety was at stake.

The Complainant is a member of the Faith Tabernacle Congregation Church (“FTC”) which is a Christian faith community operating a church in Kamloops.  She is active in the congregation and volunteers regularly for its many activities including cooking meals at a local homeless shelter, sewing baby clothes for donation to low income mothers and other charitable work done by her church community.  The Kamloops Society for Poverty Prevention named her the “Difference Maker of the Year” in 2018.   

Ms. Johnson testified on her own behalf and her pastor, Robert Wiley provided background on the church doctrine.  FTC believes deeply in the power of prayer and asserts that all diseases are part of God’s divine plan.  Their faith prohibits interference with this plan and church members are expected to build immunity naturally.  Some church members have been infected with Covid -19 and suffered relatively minor symptoms.  Pastor Wiley and the Complainant attributed their speedy recovery to God’s mercy and the regular prayer sessions FTC held for these congregation members. 

Background

TRU’s first witness was Matt Hewes, who is Dean of the School of Early Childhood Education   where Ms. Johnson works.  TRU called its remaining witnesses: Paula Mitchell,   Early Childhood Education Coordinator and Dr. Charles Hanson (consulting physician).

Ms. Johnson has been an ECE since 1990. She has worked for various employers over the years.  For the past four years she has worked at TRU.  All parties agree that she is a capable and ECE who is well liked by the people she serves in that capacity.   She has always been a reliable employee, who has demonstrated exceptional work performance as an instructor in the Early Childhood Education program at TRU.

In her role as an ECE, Ms. Johnson works with students obtaining certification to work in a daycare setting.  As part of her role, Ms. Johnson attend at daycares around the Kamloops region to assess and coach her students in an active daycare setting.

Ms. Johnson testified that she joined FTC about ten years ago at the urging of a friend.  She states that her congregation is like family to her and the group is very close knit.  While FTC members refuse medical interventions, it is acceptable for them to engage in activities that reduce the spread of disease that are non-medical.  In Pastor Johnson’ testimony he explains that hand washing, using hand sanitizer or wearing a mask to prevent disease spread is perfectly acceptable behaviour for FTC church members.  However, FTC is very clear that vaccination goes against their strongly and sincerely held religious views.

There was no evidence that Ms. Johnson has ever overlooked existing Covid-19 protocols at TRU.  However, it is undisputed that she refused the opportunity to be vaccinated as a ECE when the province of British Columbia made these vaccines available. 

Mr. Hewes testified that employees made him aware that Ms. Johnson refused to be vaccinated against Covid-19 despite her role of working with vulnerable, unvaccinated children on behalf of  TRU.  Mr. Hewes recalled walking into a lunch-time conversation around January 2020, where some staff members were discussing the issue of upcoming vaccinations.   It was Mr. Hewes’s recollection that Ms. Johnson said something about vaccinations being “against God’s plan” and that he just said, “Really? You think God is against vaccinations? ” Mr. Hewes testified that Mr. Johnson confirmed that she believed this statement to be true.  Mr. Hewes decided not to pursue the matter further at that time because vaccines were not yet available and he didn’t want to upset Ms. Johnson on a religious issue.

Religious Views

Despite having been told by employees of Ms. Johnson’s vaccine views, Mr. Hewes did not question Mr. Johnson about this, until September 4, 2021 when all ECE staff at TRU were expected to be vaccinated and vaccines were widely available to people within Ms. Johnson’ age range.  Mr. Hewes explained his delay in the sense of there were a lot of issues facing him at TRU, especially with restrictions on visitation to daycares, the curtailment of student activities and live attendance in classes,  new safety and cleaning protocols and the roll out of vaccinations.   As he stated in his testimony,  “I was juggling a lot of things at the same time”.   I asked Mr. Hewes if he had been turning a “blind eye” to the matter because Ms. Johnson was such a good worker. Mr. Hewes denied this. He testified that he approached Mr. Johnson on September 4, because TRU was returning to live, in person instruction.  In addition, another staff person, Paula Michelle approached him to advise that the Complainant refused to be vaccinated. Ms. Michelle testified that she and other staff felt that this was a serious safety concern, especially in light of the fact that young children could not be vaccinated.

In testifying about September 4, 2021, Ms. Johnson read the following passage from her complaint:

After my work day, the manager came to me and told me there is no tolerance refusing a vaccination.  He told me my job depended on getting vaccinated to start the school year in September and if I refused he stated  “your job here will be suspended  and you will not be permitted to attend at the workplace”. I said, “my faith will not allow me to violate God’s divine plan”. I also mentioned I had no issue with continuing to wear a mask and take other safety measures.  I also stated that my church had assured me that my choice not to vaccinate was legally protected.

Ms. Johnson further stated that she is always aware of safety, and is always looking and making sure no one is compromising Covid-19 protocols;   i.e. social distancing, mask wearing and hand washing.  Ms. Johnson testified that she is not fearful of Covid-19 and believes that God will protect her and those around her.  She says her experience with other FTC members who have recovered well from Covid-19 is “proof” that her approach is working.  

Events of September 4, 2021

In cross-examination, Ms. Johnson testified that she did not believe she was violating the WCA Regulations because “… there is nothing in those regulations that requires me to get a vaccine so I can’t be violating any safety rule”. 

Mr. Hewes’s evidence was that, when he spoke with Ms. Johnson on September 4, 2021, Ms. Johnson made it clear that she would not be vaccinated.  Mr. Hewes recalls stating to Ms. Johnson that this position was a “deal breaker”. Mr. Hewes testified that he told Mr. Johnson, “Tessa, think it over. We all get fixed into a position.  We need to put the children first. Sleep on it.” According to Mr. Hewes, Ms. Johnson was upset with his statements, but that was the end of the conversation.

Mr. Hewes testified that the University did not want to lose Ms. Johnson, and he felt that, after sleeping on it, Ms. Johnson would be back at work the next day and agree to get vaccinated.  He testified that the only issue he had with Ms. Johnson was her refusal to vaccinate because of her close work with vulnerable children and infants.  

On September 6, 2021 the University issued the following letter, signed by Mr. Hewes and provided to Ms. Johnson by email:

On September 4. 2021 you indicated to me Matt Hewes, Dean of the School of Early Childhood Education (Thompson Rivers University)  that you refuse to be vaccinated against Covid-19. I confirm explained to you that we have vulnerable children including those under 5 years of age as well as infants who cannot yet be vaccinated.  TRU  requires all our Early Childhood Education staff to be vaccinated as a protective measure for their own safety and the safety of fellow staff members and most of all, vulnerable children   As such,  TRU must have a zero tolerance vaccine refusal at the worksite effective the start of the school term in September 2021.  This is consistent with TRU’s safety plan.  You have told me that you refuse to be vaccinated and that you have no intention of ever being vaccinated for Covid-19.  I then expressed for you to consider this overnight and if you can’t agree to be vaccinated then it will be considered that it is your decision to suspend, without pay, your employment with TRU.  TRU has to follow safety rules and we cannot have staff working on site at daycares endangering staff and unvaccinated children in a fashion  that could potentially expose them to a fatal virus.  I can’t turn a blind eye to that.  I understand that everyone has a right to their religion but I am responsible for the health of everyone at the daycares where we send students and if they get sick because of you, that’s on me. 

If, over the next six months you change your mind and agree to vaccination, we will re-instate you to your former position.  If, by March 4, 2022  you remain unvaccinated and have not received at least your first dose of a Canada Health approved vaccine, we will consider this the end of your employment with us and a Record of Employment will be issued immediately.

If for some reason our information is incorrect and you decide that you want to be vaccinated and come back to work in September, please advise us by September 10, 2021.

In the package of documents entered as exhibits during the hearing, Ms. Johnson included a letter to Mr. Hewes  dated May28, 2021, which she read into her testimony:

It was not my intention to quit my job. I like my job am I am good at what I do. When it comes to interfering with God’s plan and getting a vaccination, I feel strongly that I should put God first in my life.   I plan to continue using protective equipment such as a mask and/or face shield as required.  I will observe cleaning protocols and take all reasonable steps other than getting vaccinated. 

I apologize for any inconvenience I have caused and hope to continue employment with you in the future.  Thank you.

Given Ms. Johnson’s stated refusal to be vaccinated for Covid-19, Mr. Hewes advised Ms. Johnson her employment would be suspended without pay in September.  On September 12, 2021 Ms. Johnson was provided with a Record of Employment (“ROE”). The reason for issuing the ROE was stated to be Code “F” - “fired for cause”.  Ms. Johnson was particularly upset at this, as the “fired for cause” became a problem when she applied for Employment Insurance benefits. However, she was able to obtain such benefits on the ground of ending her employment due to her religious beliefs.  She testified that she has been unable to find another ECE job and worries what will happen once her Employment Insurance benefits run out.

Ms. Johnson argued that her deeply and sincerely held religious convictions prohibited the administration of vaccines.  In addition, there were no WCA laws or regulations that would require her to be vaccinated.  However, she would continue to engage in all other safety protocols (including mask wearing) in order to protect the staff and students at TRU.  In addition, once all of the Early Childhood Education  students were vaccinated, there would be a lot less risk to them from her not being vaccinated so this concern is a temporary one at best.  The effects of Covid 19 in children tend to be mild because, as she puts it “God protects the children”.  In addition, Ms. Johnson argues that she could easily be accommodated through safety protocols and personal protective equipment.  In addition, Ms. Johnson stated that she could be transferred to a position in the ECE program where she just taught classes online and without students present.  This would allow her to present less of a risk.

The Complainant states that the effect of the Respondent’s decision sets up a hierarchy of rights saying that a requirement to be vaccinated with a new and untested vaccine is more important than freedom of conscience and religion.  This, she asserts is wrong and that all rights should be treated as being on an equal footing in society. She states that no one should be subject to any obligation or sanction because of their belief in the power and wisdom of God.  Further, people who put their faith in God should not be forced to find another career or be subjected to fines and punishment.   "We talk about people being in the closet, well now they are saying somebody of a faith perspective is supposed to keep it in the closet," she stated.

When asked what remedy Ms. Johnson was seeking, Ms. Johnson replied that justice be served, and that she be awarded all possible remedies including:

1. Compensation for lost wages, loss of employment, undue stress, and legal expenses.
2. Re-instatement to her job as an ECE at TRU;
3. A letter of apology from TRU;
4. $10,000 for injury to her dignity as a person and insult to her religion.

TRU argued that the medical evidence did not entitle Ms. Johnson to refuse a vaccine.  Dr. Hansen testified that no vaccine was 100% effective and so allowing some workers to refuse it would unnecessarily compromise the health if not the life of many vulnerable young people and staff.   Some of the families of some after school students were also refusing to have them take the vaccine stating that they felt it was a conspiracy to “inject them with a 5G chip” or somehow poison them.   As such, there would still be vulnerable students in all age levels at daycares after vaccines were widely distributed.  Dr. Hansen  also expressed a concern that other ECE’s and students would buy into what he describes as conspiracy theories and allowing staff to refuse vaccines would unreasonably compromise legitimate, life and death healthcare.    In addition, TRU pointed to variants of concern that appear to be affecting younger people more seriously.  More and more children were getting sick and being hospitalized with Covid.  This made the importance of vaccines even more important to TRU than when the issue was first raised in late in 2020.

TRU pointed out that it was returning to live classes in September of 2021 after more than a year of online delivery.   They submitted a survey of students who overwhelmingly indicated a desire to return to live classes and that the isolation of online delivery was damaging their mental health and amounted to an inferior educational experience.  To permit Ms. Johnson to instruct online would be an inferior experience for students and it was not reasonable to expect them to accept online class delivery when all other instructors were teaching live in person.

Mr. Hewes made it clear that he viewed Ms. Johnson as an ideal, caring employee except for her refusal to be vaccinated.  He states that he has no issue with people pursuing their religion but disagrees with the FTC stance on vaccinations. 

In the alternative, TRU submits that if Ms. Johnson were successful in establishing a prima facie case, TRU argues it met the bona fide occupational requirement (“BFOR”) test expressed in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”). TRU could not point to any specific Occupational Health and Safety Regulation requiring vaccination. However, it argued that an employee working with vulnerable staff and children as young as newborn should not be at work in a situation where they could be an asymptomatic spreader of this disease.  In a situation like this, it could quite literally mean the death of an innocent child or staff member and as an employer, they must not knowingly permit an employee to remain at work when they present that sort of risk.  TRU emphasized that Ms. Johnson’s job required her to be in close contact with children, some of whom could face serious health challenges.  It states that Mr. Hewes investigated before approaching Ms. Johnson, and that she made her position very clear respecting vaccination. Counsel for the Respondent concludes by stating that the University could not accommodate the Complainant when literal life and death safety was at stake.

In reply to Ms. Johnson’s argument on remedy, TRU argued that she had a duty to mitigate and had made no efforts to find alternative employment.  They also argue that Ms. Johnson could seek work in other settings where the risks of her being unvaccinated would be much lower. 

Ms. Johnson brought her complaint under s. 13(1)(b) of the Code on the ground of religion disability. Section 13 provides in part:

(1)  A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of   employment because of the … religion … of that person.…

Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

I will therefore consider Ms. Johnson’s assertion that she was wrongfully dismissed because she refused to be vaccinated against Covid-19 in compliance with her sincerely held religious beliefs versus TRU’s assertion that a vaccinated workers at a senior’s care facility is a bona fide occupational requirement.

The complainant has the burden to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpson Sears Ltd, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”), the Supreme Court of Canada stated:

A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer. (para. 28)

In order to establish a prima facie case, a complainant must prove that he/she holds a characteristic protected under the Code, that he/she was subjected to adverse treatment, and that his/her protected characteristic was a factor in the adverse treatment: Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), para. 33. If a complainant succeeds in establishing a prima facie case of discrimination under s. 13(1) of the Code, the respondent bears the burden of justifying its conduct as a BFOR under s. 13(4).

A BFOR will be established if the respondent cannot accommodate the complainant without incurring undue hardship. This has been expressed in the authorities as a “duty to accommodate” short of undue hardship or to the point of undue hardship. The duty to accommodate is said to have realistic limits and is tempered by a standard of reasonableness: O’Malley, para. 23.

The Supreme Court of Canada in Meiorin was concerned with a female firefighter who failed to meet the aerobic standards set by the employer, and was therefore dismissed. The Court expressed a three-step test for determining whether the employer had established a BFOR:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate  work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

In Hydro-Québec v. Syndicat des employé-e-s techniques professionelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (CanLII), [2008] 2 S.C.R 561, a decision post-Meiorin, the Supreme Court of Canada explained the duty to accommodate as follows:

the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

In Central Okanagan University No. 23 v. Renaud, [1992] 2. S.C.R. 970 (“Renaud”), the Supreme Court of Canada spoke of a “search” for accommodation as a “multi-party inquiry” which in that case included the employer, the union, and the employee. The Supreme Court of Canada in Renaud expressed an obligation upon the employee to facilitate accommodation:

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for   such an accommodation. Thus in determining whether the duty of accommodation has been     fulfilled the conduct of the complainant must be considered. (para. 43)

[34]      Ms. Johnson had been a long-time member of FTC and I accept her evidence and the evidence of her pastor that being vaccinated would be viewed as a clear violation of her sincerely held religious beliefs.  I also accept that even though there is no express legislative requirement that TRU have its employees vaccinated, there is a general employment obligation on the part of TRU to ensure that its employees function in a safe workplace and a general healthcare obligation that the staff, students and visitors at its facilities and facilities where it operates are medically protected in so far as that is possible.

I must first consider whether or not there is prima facie discrimination against Ms. Johnson related to her refusal to be vaccinated.  In that regard I find as follows:

The discrimination on the basis of religious factors is prohibited. This means a person should not be terminated for Ms. Johnson’s religious beliefs unless and until, the actions taking by her directly or indirectly affect the safety of the others. In the pandemic of Covid-19, it is the duty of the employer to take preventive steps to maintain safety in his organisation but cannot violate human rights in the lien of this pandemic. As per the Human Rights Code, the religious exemptions can be granted to a person if he/she establishes that he/she is an old believer and member of a religious place and her believes restricts her to take vaccination. Ms. Johnson is a member of Faith Tabernacle Congregation Church (“FTC”) from last ten years and her religious beliefs strongly denies her to take the vaccination hence I consider her right to deny the vaccination.

On referring the exemption of the creed, prescribed by the Human Rights Code, the employer cannot force any person against her will to take vaccination. This shall amount the violation of her religious and human rights as well. The complainant is a part of a religious organisation from a long period and establishes a ground to refuse to get the vaccination. She is also working in TRU from 2017 and her work and eligibility has taken as a factor for non-termination. The Human Rights Code also considers the reliability of the employee while deciding the BFOR in an employment. Ms. Johnson has established the prima facie case of discrimination related to her refusal of taking vaccination. On this particular ground of religious belief, the complainant can claim the Employment Insurance from the defendant.

I now need to turn my attention to whether or not requiring Ms. Johnson to be vaccinated against Covid-19 as a condition of her employment constitutes a bona fide occupational requirement that cannot be accommodated without undue hardship. 

The prima facie has established by the complainant and as per the evidences and arguments established a ground to believe that the complainant is in the requirement to take the vaccination for the safety of children and the infant child. Facts ruled in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) administer the tests of Bona fide occupational requirement. The complainant has established the fact that the vaccination is must for ECE staff because they directly come in the contact of children who cannot protect them by getting vaccination. The lives of the younger generation is more valuable than any religious belief. This proves the defendant cleared the first test of BFOR. The defendant also proved this step has taken by the defendant for the safety of the children and not to discriminate the religious beliefs of the complainant. This clears the second test of the BFOR. The vulnerable children and infant cannot be vaccinated which increases the requirement of vaccination for the staff. The witness by TRU also stated that the defendant has given the appropriate time and notice to the complainant before the termination.

The defendant has also proved the fact that online classes can affect adversely to the students and cannot be applied by the institution. The option of work from home cannot be given to her as per requirements of the job. The termination can be treated as ‘fired for cause’ and shall be valid in the eye of law because the safety of the vulnerable children and infant is a serious matter to care of. The conditions of BFOR are applied in this case with undue hardship by the employer. The employer in this case can terminate the complainant, whereas, her eligibility and effectiveness of work cannot be overseen by the court. The religious belief of the complainant is also valid in the eye of law and cannot be ignored. I consider Ms. Johnson to get an opportunity to claim her rights to get compensation as Employment Insurance from the employer. 

Conclusion 

It is held that Ms. Johnson has given her valuable years to TRU and her termination can devaluate her efforts for the organisation which is against her human rights of an employee.  Ms. Johnson can claim her Employee Insurance from the company. It is also held that the TRU has taken steps for the safety of the students who are not eligible for taking vaccine which conclude that, the termination by the institution is valid as well. The termination is considered as bona fide organisational requirement, hence, the TRU is not liable to compensate to Ms. Johnson other than EI.