Western students to appeal decision on privacy rights and booster mandate

September 30, 2022: The Democracy Fund (TDF) announced today on behalf of several Western University students that it will appeal the decision of an Ontario Superior Court judge, which denied their claim that the school's collection of COVID-19 vaccine data violated privacy laws.

In conjunction with lawyer Lisa Bildy of Libertas Law, and Bruce Pardy, executive director of Rights Probe, TDF will file an appeal with the Ontario Court of Appeal, asking the court to overturn the decision of Justice Tranquilli.

The Freedom of Information and Protection of Privacy Act (FIPPA) creates a prohibition against the collection of personal medical information by Western, unless one of three statutory exceptions applies. The parties agreed that the only relevant exception, now that the Province has revoked orders for vaccine mandates under the Reopening Ontario Act, is that the information is necessary to carry out the university's lawfully authorized activities.

The students' legal team had argued (factum, reply factum) that an institution's "lawfully authorized activities" are the services or programs for which the institution exists to provide to the community – in this case, the provision of post-secondary education and other incidental activities. Institutions may be empowered to create policies to manage their affairs and further their objectives, but these policies are not their "lawfully authorized activities" under FIPPA. In the leading case from the Ontario Court of Appeal, Cash Converters v. the City of Oshawa [https://canlii.ca/t/1rxpx], the court held that the City's bylaw, which permitted the collection of details about vendors of second-hand goods to share with police, was validly passed – but that was not the point. The lawfully authorized activity of the City was the administration of a consumer protection regime, rather than the bylaw, and the City had failed to prove that collecting the information was necessary for that activity.

However, the court in the Western decision held that the policy for the collection of information on vaccination status was itself a lawfully authorized activity of the university, given its broad powers under the UWO Act.

"The applicable section of FIPPA exists to remedy the erosion of individual privacy at the hands of institutions eager to collect personal information. It should not be the case that an institution can get around specific prohibitions against collecting private information by simply drafting a policy authorizing it and then calling that policy its 'activity,'" said TDF lawyer Mark Joseph. "Specific legislation always takes precedence over a general grant of powers."

Read the full announcement at The Democracy Fund website here.