THE EMPLOYERS' EDGE
FEDERAL COURT REFUSES TO ISSUE INJUNCTION, RULING THAT MANDATORY VACCINATION POLICY DOES NOT FORCE EMPLOYEES TO GET VACCINATED
It may seem strange to reason that a mandatory COVID-19 vaccination policy does not in fact force someone to get vaccinated, but that is exactly what a Federal Court ruled in Wojdan et al. v Canada (Attorney General), 2021 FC 1341.
The Applicants were unionized employees of the Government of Canada and members of the core public administration.
The Vaccination Policy (the “Policy”) in question required the Applicants to be fully vaccinated against COVID-19 and to disclose their vaccination status to their employers. The Policy permits mandatory COVID-19 testing as an alternative to vaccination for those who are “unable to be fully vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act, which could also include employees who are partially vaccinated”. However, the Policy does not permit mandatory testing as an alternative for those who do not wish to be vaccinated, or who do not consent to disclosing their vaccination status to their employers.
The sole issue raised by this motion was whether the Applicants’ motion for an interlocutory injunction should be granted. An injunction would have stayed the operation of the Policy for all members of the core public administration pending final determination of the Application, which is to take place at a later date.
An interlocutory injunction is an extraordinary form of equitable relief. An Applicant must establish that: (i) there is a serious issue to be tried, (ii) the applicant will suffer irreparable harm if the stay is not granted, and (iii) the balance of convenience favours the Applicant.
Ruling of the Court
No Serious Issue
Before a court will intervene in an employment-related dispute, there must be a gap in labour adjudication that causes a “real deprivation of ultimate remedy”. The Court in this case reasoned that all the remedies that may be granted in this case can be granted by a labour adjudicator or, where applicable, the Federal Public Sector about Relations and Employment Board. Furthermore, as illustrated by a recent decision concerning Canada Post’s mandatory vaccine policy, in an appropriate case a labour arbitrator may consider a request for interlocutory relief on an urgent basis (Re Application for Interlocutory Cease and Desist Order in Relation to CUPW Grievance No N00-20-00008, November 30, 2021).
No Irreparable Harm
Justice Fothergill summarized the argument contrary to irreparable harm in this case with the following:
35 The harm the Applicants may suffer is being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated. They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other… Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination. [emphasis added]
Justice Fothergill also aptly pointed out that the loss of employment, while a significant and important consequence, is something that can be compensated in monetary damages. Therefore, the Applicants were unable to demonstrate that they would suffer irreparable harm if an injunction is not granted.
Having not shown a serious issue to be tried or irreparable harm, the Court did not feel it necessary to specifically weigh the balance of convenience in this case, as that had already been demonstrated through the other factors.
The Applicants therefore did not demonstrate that the Court should exercise any residual discretion it may have to stay the operation of the Policy for all members of the core public administration. The motion was accordingly dismissed.
This case is now added to an important line of case law discussing the validity of vaccination policies in the workplace. While this case did not rule on the vaccination policy specifically, it does tell us that Courts will not generally consider a mandatory vaccination policy to be forcing employees to get the vaccine. Employees do indeed have a choice in the matter – though we know that choices have consequences. In the case of many, that consequence is potentially losing one’s income.
If you have questions about the validity of your workplace COVID-19 Vaccine Policy, or you need to consider updating or amending your policy in the circumstances, please reach out to the lawyers for employers at CCPartners for proper guidance and support.