Executive Summary: Key Legal and Evidentiary Issues

• Nadine Dunseith resigned from her teaching position at Calgary French & International School Society (CFISS) rather than comply with the employer's Covid-19 vaccination policy, then filed a human rights complaint alleging discrimination on the ground of mental disability.

• Two psychologists' letters confirmed a diagnosis of Generalized Anxiety Disorder, but only one referenced "anxiety specific to injections," and neither letter established that the Applicant was unable to receive the vaccine or described concrete limitations flowing from her condition.

• CFISS denied the Applicant's medical exemption request because it did not meet the Alberta Health Services Scientific Advisory Group (SAG) guidelines, which were limited to severe allergic reactions or myocarditis from a prior vaccination.

• The Director of the Alberta Human Rights Commission dismissed the complaint for having no reasonable prospect of success, and the Chief's delegate upheld that dismissal on statutory review, finding insufficient evidence linking mental disability to an inability to comply with the policy.

• On judicial review, the Court applied the reasonableness standard from Vavilov and the three-part Moore test for adverse impact discrimination, concluding the Applicant failed to demonstrate her protected characteristic was a factor in a functional inability to comply.

• Central to the ruling was the distinction drawn from Stewart v Elk Valley Coal Corp between a disability that functionally prevents compliance with neutral workplace rules and a personal preference or choice merely informed by the disability.

The facts of the case

Nadine Dunseith was a probationary teacher hired by Calgary French & International School Society (CFISS) in April 2021, with work commencing in August 2021. Shortly after she began her employment, in late September 2021, CFISS enacted a Covid-19 vaccination policy requiring all employees to provide proof of immunization before entering the workplace. Employees who had not yet been fully vaccinated were given a grace period through the end of October 2021, during which they could undergo rapid testing. Those who did not provide proof of full vaccination by November 1, 2021, would be placed on unpaid leave and terminated by the end of that month if they still did not comply.

The employer's vaccination policy and medical exemption process

The CFISS policy contained a medical exemption process aligned with guidelines recommended by the Alberta Health Services Covid-19 Scientific Advisory Group (SAG). Exemptions were narrowly limited to individuals whose physicians confirmed they had suffered either a severe allergic reaction or myocarditis from a previous vaccination. The Applicant did not assert that she fell within either of those narrow medical categories.

The Applicant's objection and supporting medical evidence

As early as May 2021, the Applicant communicated to CFISS her objection to vaccinations, telling the school she had "an adverse history with injections" without providing further detail. She later noted in her complaint that her anxiety around injections was "recent and traumatic." In support of her exemption request, she submitted letters from two registered psychologists. The first letter, from Robert Hadden, reported diagnoses of Generalized Anxiety Disorder, Posttraumatic Stress Disorder (in partial remission), and Adjustment Disorder with Depressed Mood, but made no mention of vaccines or injections. The second letter, from Lynne Goertzen, identified the same diagnoses and noted the Applicant's "anxiety specific to injections," recommending that CFISS support her exemption request to retain employment. However, neither letter stated that the Applicant was unable to receive the vaccine nor described the expected scope, scale, or nature of the impact upon her if she were to get it. The Goertzen letter, in fact, observed that the Applicant was actively engaged in therapy and able to use counselling strategies to manage her symptoms.

The exemption denial, resignation, and complaint process

CFISS anonymously reviewed the Applicant's exemption request and denied it because it did not meet the SAG guidelines. Six days later, on October 19, 2021, the Applicant tendered her resignation. She filed a complaint with the Alberta Human Rights Commission (AHRC) on October 25, 2021, alleging discrimination in employment contrary to section 7 of the Alberta Human Rights Act on the ground of mental disability. There was no further dialogue between the parties about the nature of the obstacle the Applicant asserted to receiving the vaccination; once refused an exemption, she simply stepped down.

The Director's decision and the Chief's delegate review

The Director of the AHRC dismissed the complaint on December 12, 2023, for having no reasonable prospect of success under section 21(1)(a)(i)(iii) of the Act. The Director noted that CFISS had enacted a vaccination policy following the best available scientific guidance, that the Applicant had failed to meet the medical exemption criteria, and that she had been accommodated with rapid testing until her resignation. On review under section 26 of the Act, the Chief's delegate upheld the dismissal, finding that while the Applicant had a recognized mental disability, the evidence did not demonstrate a link between the decision to refuse her exemption request and that disability. The Chief's delegate concluded the Applicant "preferred" not to participate in the vaccination program but that neither of the psychologists' notes supported the assertion that her mental disability "prevented" her from becoming vaccinated.

The judicial review and the distinction between choice and disability

On judicial review before the Court of King's Bench of Alberta, Justice N.E. Devlin applied the reasonableness standard from Canada (Minister of Citizenship and Immigration) v Vavilov. The Court examined the three-part test for adverse impact discrimination from Moore v British Columbia (Ministry of Education), which requires that the complainant show (i) a protected characteristic, (ii) an adverse impact, and (iii) a connection between the two. All parties agreed the Applicant's Generalized Anxiety Disorder was a protected characteristic. The adverse impact was identified as the Applicant's perception of constructive dismissal precipitating her resignation. The central question was whether the evidence allowed the Chief's delegate to reasonably find "no connection" between the Applicant's anxiety disorder and her job loss.

Application of the Elk Valley framework

The Court relied heavily on the Supreme Court of Canada's decision in Stewart v Elk Valley Coal Corp, which drew a distinction between employees who are unable to comply with neutral workplace policies due to disability and those whose failure to comply is a matter of choice. Justice Devlin found that the Chief's delegate had precisely applied the majority reasoning from Elk Valley: it could not be assumed that the Applicant's anxiety disorder diminished her capacity to comply with the vaccination policy, as opposed to merely her desire to do so. The Court emphasized that an objectively established incapacity to comply is the sine qua non of a discrimination claim under the majority approach, and that there was no evidence before the Director or the Chief's delegate that the Applicant was unable to receive a vaccine. The Court further noted that the same psychologists' letters had been considered and found inadequate in a related complaint, Dunseith v University of Calgary, where Chief Commissioner Oviatt concluded the medical information was not clear that the accommodation request was based on an objective medical need.

The ruling and outcome

Justice Devlin dismissed the application for judicial review, without costs, finding that the Chief's delegate had reasonably concluded the Applicant failed to establish a functional inability to comply with the workplace vaccination requirement. The Court held that the mere fact that the vaccination requirement coincided with her anxiety disorder to an unknown degree was insufficient to establish prima facie discrimination. The successful party in this matter was the respondent, Calgary French & International School Society, and no monetary amount was ordered, granted, or awarded, as the application was dismissed outright on the basis that no discrimination had been shown.