McGill law professors say school has 'a legal obligation' to enforce mandatory vaccines for on-campus attendance

Montreal -

More than 1,000 people have signed an online petition demanding McGill University make vaccines mandatory for students on-campus, while voices from each side debate whether it would be legal to do so.

Without mandatory vaccines, members of McGill’s own law faculty say the school could be leaving itself open to lawsuits from the university community.

Earlier in August, McGill student Phaedra de Saint-Rome launched the petition after the University of Ottawa decided to make vaccines mandatory for all students returning to campus in-person.

She says McGill should do everything in its power to keep students from contracting COVID-19, and that a vaccine requirement is an important step in doing so.

“The science says that the best course of action, and the best way to stay safe, is to be vaccinated and to continue wearing a mask, particularly in close spaces,” she said.

“So, I'm hoping that [McGill] will follow that science.”

The university says it is not legally allowed to make vaccines mandatory for students without an explicit government directive.

This week, the Legault government announced vaccinations are mandatory for health-care workers and students in health-care programs.

For now, educators and students in other departments are not being forced to get the shot.

“Our view is that unless the government mandates vaccination, in the Quebec context we cannot legally require it,” wrote McGill spokesperson Katherine Gombay in a statement to CTV News.

“McGill will continue to take a prudent planning approach that allows us to adapt as the health and well-being of our community remains a top priority.”

But that claim was refuted by members of the university’s law faculty, who wrote an open letter to McGill claiming there is no legal reason the school can’t impose its own vaccine requirement (letter attached below this article).

“We have concluded that the university not only has the legal authority to institute such a policy but has a legal obligation to do so,” read the letter.

“Usually, when you ask someone, what's your (legal) reasoning, they give you one, but they give everyone the exact same sentence you got,” Richard Gold, a McGill law professor, told CTV News.

“So, we looked far and wide,” he said, adding he and others combed privacy, employment, and human rights laws, as well as the Canadian and Quebec charters.

“We could find nothing that prevented McGill or sister universities from instituting such a program,” he said.

“None of us have any clue why McGill is taking this position.”

A LEGAL LIABILITY?

Gold says that without a mandatory vaccine policy, the school may be leaving itself open to legal action from students and staff.

A lawsuit, according to Gold, could come from one of two groups of people.

The first group, he says, includes students, faculty, and staff who have health conditions that put them at a greater risk of COVID-19 complications.

Or, he says, those who have children under 12, or are taking care of someone with a health condition.

“They will sue under discrimination,” he said, “and we have quite robust anti-discrimination laws based on disability.”

The second group, says Gold, includes those who get sick because a classmate is unvaccinated.

“Either they then themselves get seriously ill, or they pass it on to someone else,” said Gold.

“Then, McGill could be sued for civil liability for having failed to meet the standard that has emerged in the world” in universities elsewhere, he said.

“In the end, it will depend on a court of law,” he added. “All we're saying is there is a legal risk here.” 

Read the open letter here: