Andrew Duffy

December 6, 2021

-Toronto Sun


The federal government faces at least 90 individual labour grievances related to its mandatory vaccination policy, with civil servants demanding reinstatement, compensation for lost wages and damages.

The policy, which went into effect in October, requires all public servants and RCMP employees to prove they’re fully vaccinated against COVID-19 or go on unpaid leave.

Information about the grievances is contained in a recent federal court decision about the federal vaccination policy. In that ruling, the court rejected a request from more than 250 public servants and RCMP employees for an injunction to suspend the vaccine requirement.

The applicants applied for judicial review of the government’s vaccine mandate, and asked the federal court to suspend that policy until their case can be heard. They contend the policy should be struck down as a violation of their charter rights.

In their request for an injunction, the unvaccinated public servants said the policy transcends labour relations and is  part of a government initiative designed to encourage all Canadians to be inoculated. As such, they said, it’s about more than jobs and wages.

“This case is not about preserving employment as much as about preserving the applicants’ right to refuse medical treatment without the threat of financial reprisal, stigma and social isolation,” lawyers for the public servants argued.

Judge Simon Fothergill, however, rejected the injunction application, saying courts must not intervene in employment-related matters, except in exceptional cases.

He said it will be up to an independent labour tribunal, the Federal Public Sector Labour Relations and Employment Board, to decide whether the government’s vaccine mandate should stand. Disputed cases before the board can take years to reach a final decision.

The federal labour relations board has a broad mandate. Charged with administering the Federal Public Sector Labour Relations Act, it resolves disputes between civil servants and their employers through individual, group and policy grievances filed under collective agreements. It also resolves issues related to pay equity, workplace harassment and human rights.

“The charter issues raised by the applicants engage broad policy concerns,” Fothergill said, “but these nevertheless form a component of a labour dispute. They therefore fall within the jurisdiction of a labour arbitrator.”

Fothergill said a labour arbitrator must decide if the vaccine policy infringes employees’ rights and if that can be justified based on public health concerns in a pandemic.

The judge said the applicants were unable to show they would suffer “irreparable harm” without an injunction. “Put simply,” he said, “a vaccine mandate does not cause irreparable harm because it does not force vaccination.” The harm suffered involves lost wages and jobs, he said, that can be repaired by a financial award if a tribunal ultimately decides the civil servants have been wronged.

The ruling is the latest in a series of court decisions that have rejected the use of injunctions to overturn vaccine mandates.

Last month, a federal court judge denied an injunction sought by an unvaccinated employee of a government supplier. People who work for government contractors must be fully vaccinated in order to visit federal workplaces.

In October, an Ontario judge ruled he did not have jurisdiction to grant an injunction sought by six unionized hospital workers against a mandatory vaccine policy at Toronto’s University Health Network. The judge said the issue should be settled by a labour tribunal.

The federal government’s vaccine policy applies to 268,000 federal public servants, including members of the RCMP. It applies whether employees are working from home or on-site.

More than 96 per cent of federal public servants have been fully vaccinated against COVID-19, according to government figures.

The Public Service Alliance of Canada, which represents 160,000 federal public servants affected by the policy, has said it supports the vaccine mandate as a means to protect the health and safety of its members.

PSAC, however, said it will continue to represent members punished because of their unvaccinated status. “We’ll continue to work to ensure the implementation of the policy protects the health and safety and human rights of our members while ensuring their rights to privacy are respected,” the union said in a statement.

With few legal precedents on vaccine mandates in workplaces, courts, labour tribunals and human rights commissions are expected to wrestle with the issue for years.