Can A Policy No Longer In Place Still Be Challenged Under Human Rights Law? feature image

Can A Policy No Longer In Place Still Be Challenged Under Human Rights Law?

A question that many parents might be hearing from their children these days is whether or not COVID-19 is “over.” In one sense, the pandemic is no longer a part of many people’s daily lives. In most of Alberta or throughout Canada, there are no longer requirements to show proof of vaccination or wear a mask. But in another sense, COVID-19 certainly isn’t “over” because people can and still do contract the virus. 

The nuanced answer to that question provides a good lead into our article, in which we look at a matter of civil litigation between a student and a university in which the applicant student claimed the defendant university violated both her Canadian Charter of Rights and Freedoms as well as her rights under the Alberta Human Rights Act (“the Act”) by not allowing her a religious exemption from the university’s policy to require vaccination in order to attend classes. The decision made its way to the Court of King’s Bench of Alberta, where the court had to decide if it should even hear the matter since the vaccination policy was no longer in place. 

Student claims the university violated her rights

When the COVID-19 pandemic began in March 2020, the university cancelled in-person classes and delivered classes to students online. By the next fall, there was a return to in-person learning. With that came a mandatory vaccination policy for students that the university put in place to begin on November 1, 2021. The policy required all persons on campus to provide proof of vaccination unless they were subject to an exemption.

The student sought an exemption based on her religious beliefs, but the request was denied by the university. The student decided not to get a vaccine and thus was not able to complete one of her courses (two were offered online, and she did complete those). 

The student brought the university to court, claiming that her rights under the Charter and the Act were violated. However, the university stated that the policy has since been rescinded, and the application is moot. They further argued that even if the application was not moot, this was not an appropriate case for declarative relief. 

Court analyzes whether the application is moot

Again, the university told the court that there is no longer a tangible or concrete dispute between them and the student since they have not had a vaccination policy since March 2022. As a result, they argue the student’s rights are not being violated. 

The court explained that the doctrine of mootness in law is one in which a court might decline to decide a case that deals with a hypothetical or abstract question. A case can also be determined moot if the action or inaction that led to a claim no longer exists in a way that affects the rights of the parties. 

There is a two-step analysis to determine whether a case is moot. The first asks whether there is a live controversy between the parties. If so, the second step in the test asks whether the court should exercise its discretion in hearing the case. 

Is there a live controversy between the parties?

In approaching the first question, the court asked whether it could make a ruling that affects the rights and interests of the parties. In this case, the court stated it might be that no remedy can be granted to rectify or ameliorate the impact the student says she suffered. The court also said it wouldn’t be able to provide any relief from future harm of yet to be announced policies. Instead, in this case, the student was seeking declarations that her rights were violated. 

The court stated that it had been held that an action for a declaration might proceed even if there are no claims for other remedies. In other cases, courts have decided to pursue these questions. Therefore, the court found the application was not moot, so it did not need to proceed to the second stage of the analysis.

Moving onto the question of declarative relief

The court began this piece of its analysis by stating that declaratory relief is a discretionary remedy and should not be granted if the dispute has become purely academic or won’t have an effect on the issues between the parties. In this case, the court found that the student’s vaccination status would not affect her ability to attend classes in the future. As such, this is an academic exercise. 

The court also found that using “scarce” public and judicial resources also weighs against declarative relief. The court was aware that the student planned to include expert testimony on the potential harm of vaccines as a significant part of her argument. The court found it would not be in a position to determine evidence from competing expert witnesses. Finally, the court also wrote that the facts of this case are so narrow in their application that a future public-serving utility of a determination on the matter could not be found. In short, the court found there weren’t any policy considerations to consider. 

As a result of this analysis, the court determined it would not allow the matter to proceed to trial. 

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