Sudbury nurse should have received religious exemption for COVID-19 vaccine, arbitrator rules

A nurse at Public Health Sudbury & Districts should have received an exemption from getting the COVID-19 because of her Catholic beliefs, an Ontario arbitrator has ruled.

The nurse was dismissed in 2021 after she refused the vaccine because she said it was tied to abortion. She is a member of the local Latin Mass community, a group of very conservative Catholics.

The woman argued that the current vaccines were developed using something called "fetal cell lines," cells grown in a laboratory from aborted fetuses.

"They descend from cells taken from fetuses aborted in the 1970s and 1980s that have since multiplied into many cells over the past four or five decades, creating fetal cell lines," said a transcript of the hearing.

"Current fetal cell lines are thousands of generations removed from the original fetal tissue. They do not contain any tissue from a fetus."

The basis of the nurse's creed-based objection to the vaccines was that they used fetal cell lines in their research and to receive one of the vaccines in these circumstances "would be to condone, cooperate with, or participate in abortion."

Fetal cell lines were not used to make the Moderna or Pfizer COVID-19 mRNA vaccines, the agreed statement of facts said. However, according to Immuize B.C., they were used to make Janssen and AstraZeneca vaccines, but they do not contain fetal cells or tissues.

The nurse learned of the existence of fetal cell lines many years ago, the transcript said, but there was no evidence she had investigated or stopped taking any other treatment because of the link.

"About 11 years ago, the grievor received a vaccine for measles that used fetal cell lines in the research and development of the vaccine, although it is not apparent that she was aware of this at the time," the transcript said.  

"As well, some of the medicines she and her family have taken over the years, including medicines that must be ingested, were developed or researched using fetal cell lines."

And there is evidence her opposition to the COVID-19 vaccine pre-dated her knowledge about the link with fetal cells.

"Her initial refusal to get vaccinated cannot therefore have been related to any concern that getting vaccinated would somehow be condoning, cooperating with, or participating in abortion," the transcript said. 

"More likely, her initial refusal was at least in part because of doubts she has about the efficacy and impact of the vaccines.  Even now, she remains unsure whether vaccines materially prevent the spread of COVID-19 …"

Despite the stamp of approval from the Pope, the nurse insisted that her "relationship with God would be seriously damaged if she received a COVID-19 vaccine."

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In Canada, "creed" is defined, in part, as a "sincerely, freely and deeply held" belief that is "integrally linked to a person’s self-definition and spiritual fulfilment."

Advocating for the nurse was the Ontario Nurses' Association, which argued that if she sincerely believes she would violate her creed by taking the vaccine, she was entitled to an exemption.

In response, representatives from the health unit argued that the nurse opposed the vaccine before she found out about the fetal cell link and didn't investigate fetal cell links with other treatments she and her family were taking.

"The employer asserts that the single thing she looked at with respect to fetal cell lines or the support of abortion was the vaccines, and that is because she was already opposed to taking them for reasons unrelated to creed," the transcript said.

In his ruling, the arbitrator wrote that court decisions have taken "an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom."

"In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion," he wrote.

"Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make."

What is key is the sincerity of the belief, the arbitrator wrote, since it's not the court's job to decide what is and isn't a reasonable religious belief.

"To require a person to prove that his or her religious practices are supported by a mandatory doctrine of faith, leaving it for judges to determine what those mandatory doctrines of faith are, would require courts to interfere with profoundly personal beliefs," he wrote.

"In my view, the state is in no position to be, nor should it become, the arbiter of religious dogma."

Despite some of the contradictions in her case, the arbitrator ruled he had no doubt she was sincere in believing her relationship with God would be harmed if she received the vaccine, the arbitrator ruled.

"Since the grievor holds a sincere belief, with sufficient nexus to her creed, that to get vaccinated would interfere with the exercise of her faith and her relationship with the divine, the grievor is entitled to an exemption based on the provisions of the Code, on the grounds of creed," he wrote in his decision.  

"It follows that the grievor was prima facie discriminated against when the employer applied its vaccine policy to deny the grievor’s requested exemption."

The hearings were held through video conference March 23 and 24, April 13 and May 18.

"As agreed by the parties, the name of the grievor and her pastor are not used, in order to preserve the grievor's anonymity," the judge said.

Read the full transcript here.