Judicial winds blow in favour of employers: First federal decision related to mandatory vaccination policies

The first federal decision related to mandatory COVID-19 vaccination policies is out. Similar to other courts in Ontario and Quebec, the Federal Court of Canada found that the loss of employment due to the failure to get vaccinated does not, by itself, constitute irreparable harm. Likewise, the court found that while such policies can engage one’s rights under section 7 of the Canadian Charter of Rights and Freedoms (Charter), the evidence must satisfactorily establish that such deprivations violate the principles of fundamental justice. Otherwise, the issue cannot be deemed “serious.”

Vaccination policy in best interest of public good; rationally connected to health and safety

In Lavergne-Poitras v Attorney General of Canada (Minister of Public Service and Procurement) and PMG Technologies Inc¹, the applicant sought an interlocutory injunction staying the enforcement of a government of Canada policy, called the COVID-19 Vaccination Requirement for Supplier Personnel (Policy), until the case on its constitutionality could be heard. The applicant was an unvaccinated, presumably non-unionized employee of PMG Technologies Inc, a government of Canada supplier. He worked in a facility managed and operated by PMG, but owned by the government of Canada and where federal public servants also worked. He did not suffer from a medical contraindication, nor did he claim to sincerely hold any religious beliefs preventing him from being vaccinated. 

What did the Policy and rules stipulate?

The Policy, included at Annex A of the decision, contained, as a contractual matter, terms on suppliers to the government of Canada, including:

• The requirement for personnel of third-party suppliers to the federal government to be fully vaccinated² against COVID-19 to access government of Canada workplaces where federal government employees are present. 
• The requirement for suppliers to certify³ that their personnel who access federal government workplaces where they may come into contact with public servants are fully vaccinated. 
• If approved, the implementation of accommodation and mitigation measures for supplier personnel unable to be vaccinated due to medical or religious reasons, or other prohibited grounds of discrimination.

For the applicant, being non-vaccinated by November 15 meant he would be indefinitely laid off or his employment with PMG terminated.

Why was the court asked to halt the operation of the Policy?

The applicant alleged that enforcing the Policy was an unconstitutional, serious issue because it would breach his right to life, liberty and security of the person under section 7 of the Charter, as forced vaccination is a violation of one’s bodily integrity and autonomy. He also claimed applying the Policy would cause him irreparable harm for a number of reasons, including (i) he would have to reorient his career because PMG is the only employer in its field in Canada; (ii) and losing his job would harm his mental health and worsen his anxiety. His anxiety, he claimed, was also based on the potential side effects of the vaccines on persons such as him who have a family history of heart disease or complications.

What were the key considerations in this decision?

The court disagreed with the applicant’s arguments, finding first that while the implementation of the Policy did engage his rights under section 7 of the Charter, a serious case could not be made out due to a lack of evidence. In other words, while the right to life, liberty and security of the person is important, the applicant failed to explain how the operation of the Policy deprived him of that right. Also, policies implemented by the government are, at the interlocutory stage, presumed to be made for the public good, and, in this case, the applicant failed to debunk that presumption. 

As for possibly losing his job, the court noted that, though it is an “important consequence,” termination of employment is not irreparable harm as understood under injunction law because it can be compensated monetarily by way of damages. Further, the court found the applicant’s related argument pertaining to the supposed reorientation of his career baseless, as it was not supported by the evidence. Regarding the alleged harm to his mental health, the court likewise found the evidence – limited to one paragraph of the applicant’s submissions – simply did not establish that his anxiety issues would worsen to the degree required for granting an injunction. “[M]ore than just general assertions, assumptions, or speculation” is required, the court wrote. 

In fact, the evidence instead established that being fully vaccinated reduces the likelihood of transmission and the Policy was rationally connected to protecting public servants’ health in the workplace. The court further noted that the Policy was not too broad or overzealous, as it did not “purport or seek to eliminate all risk of contagion from all possible sources.” Instead, it sought to reduce the risk of transmission of COVID-19 among federal government employees at their workplaces. Of note, the court commented:

Material harm to the public interest would arise if the requested injunction is issued, both in the form of increased health risks to federal employees and in the form of undermining a considered policy implemented by the federal government as employer. These harms significantly outweigh the harms identified by [the applicant] on this motion.

For these reasons, the court rejected the motion, with no costs sought for or awarded. 

Take-aways

We are now seeing a trend from Canadian courts favouring the implementation of mandatory vaccination policies by employers and business leaders. Indeed, it is interesting to note that in other cases involving COVID-19 vaccination requirements, both the Quebec and Ontario Superior Courts of Justice very recently reached similar conclusions to that in Lavergne-Poitras.⁴ From this, we can observe that, both provincially and federally, the courts have shown a certain reticence to interfere, by way of injunction, in implementing vaccination policies for places of work and business. Instead, vaccination policies – and their enforcement – can be found to be in the best interest of the public good, and rationally connected to the objective of protecting health and safety, as was the case here.

As far as potential section 7 Charter arguments are concerned, the court noted such challenges must be based on evidence – not just assertions. Though the court in Lavergne-Poitras did not make a determination on the constitutionality or reasonableness of the Policy per se, it did find there is an evidentiary threshold to meet where section 7 issues are raised as an attack on a vaccination policy, even at the interlocutory stage. To make a case under section 7, declarations of fear or concerns that COVID-19 vaccines aren’t safe, and having resulting anxiety issues simply do not cut it.

Looking forward, it can be hoped that more decisions favouring the implementation of mandatory COVID-19 workplace policies will be made. However, as more litigation in this area is expected, federally regulated employers and businesses coast to coast should be mindful that further challenges in this area are likely to arise. Ensuring that policies, and their implementation, are well considered and reasonable in the circumstances will therefore be key in the time to come. The health and safety of our workplaces are counting on it.