ANALYSIS: How Likely Is a Win for the Lawsuit Against Canada’s Military Over Vaccine Mandates?

Reservists help pack military vehicles with boats and fuel at CFB Kingston in Kingston, Ont., on May 9, 2017. The Canadian Press/Lars Hagberg

With Canadian courts repeatedly siding against challenges on COVID-19 mandates throughout the pandemic, will the outcome be any different for the nearly 330 Canadian Armed Forces (CAF) members who recently filed a $500 million class-action lawsuit against the military over the issue?

Allison Pejovic, a senior lawyer and assistant litigation manager for Charter Advocates Canada, says what’s different about this case is a series of recent rulings by the Military Grievances External Review Committee. The independent military administrative tribunal found that the CAF’s vaccine mandate violated the Section 7 charter rights of service members who refused vaccination, by infringing on their right to liberty and security of the person.

She said this could make a difference in the case.

“We’ve always said that these vaccine mandates are a violation of the charter, and now so does the grievance committee,” she said. “So I do think there is a chance for success here, and I am very interested to see the outcome in terms of future court cases on vaccine mandates.”

But some lawyers point out that the slew of previous rulings on such vaccine mandate cases stacks the deck against this latest challenge.

“Given the jurisprudence in the courts on COVID-19 vaccine mandates and other pandemic measures to date, I am not betting on a favourable outcome,” Lisa Bildy, a litigation lawyer at Libertas Law, said in an interview.

The 329 current and former CAF members filed a statement of claim with the Federal Court on June 21, claiming they were harmed by the COVID-19 vaccine mandates. The lawsuit was filed against Chief of the Defence Staff General Wayne Eyre, Vice Chief of the Defence Staff Lieutenant-General Frances Allen, Minister of National Defence Anita Anand, former deputy minister of national defence Jody Thomas, and others. The Department of National Defence told The Epoch Times previously that as a matter of process, “we do not comment on potential legal actions of this nature.”

In the fall of 2021, CAF imposed a COVID-19 vaccine mandate, with non-compliance subsequently leading to the loss of hundreds of members. The members left through either voluntary release or expulsion under code 5(f), “unsuitable for further service,” a dishonourable discharge reserved for soldiers with “personal weaknesses” or other issues deemed to impose an excessive burden on the military.

While CAF eventually eased the vaccine mandate in October 2022 by removing COVID-19 vaccination as a condition of service, it did not do away with a mandatory primary series of injections for numerous operational roles.

Grievances Review Committee

The CAF’s Military Grievances External Review Committee recently determined that the COVID-19 vaccine mandate violated the Section 7 charter rights of members who refused vaccination.

The committee concluded that “limitation of the grievors’ right to liberty and security of the person by the CAF vaccination policy is not in accordance with the principles of fundamental justice” because the policy was in some ways “arbitrary, overly broad and disproportionate.”

The committee said the requirement for all CAF members to be vaccinated within 14 days was overly broad and failed to consider remote-work or low-risk situations. It also said the termination of unvaccinated employees was unreasonable given alternative options like teleworking and COVID testing. In addition, it said the rules were arbitrary because the CAF failed to explain why alternatives could not be made available to those who didn’t want to be vaccinated.

Pejovic said Charter Advocates Canada has previously argued that vaccine mandates were overly broad and disproportionate because they applied to university students or employees working from home, and to people who could prove natural immunity from prior COVID-19 infection. She said the committee’s decision—while non-binding—is an encouraging result.

“To see some sort of review committee making a finding under the charter that this has been a breach under Section 7, that [this] is not in accordance with fundamental justice, is a very encouraging sign,” she said.

Litigator Bildy noted that in most cases of Canadians challenging workplace vaccine mandates, courts and tribunals have ruled in favour of the governments or employers, with many claiming that the Canadian Charter of Rights and Freedoms was either not infringed at all or was done in a justified manner during a “once-in-a-century pandemic.”

Bildy said Section 7 charter rights—which involve the right to life, liberty, and security of the person—are “tricky to advance in workplace mandate cases” because they don’t generally protect economic rights. But she said the grievance committee decision’s departure from other cases could be due to the “heavy-handedness of forcing [people] out of not only a job, but sometimes their homes and an entire lifestyle, and doing so while also accusing them of disobeying an order and committing misconduct.”

Hindsight may have played a part in the decision, Bildy added. She said that with Canadian society emerging from a “state of heightened fear and concern,” there could be more willingness to reflect on the unreasonableness of vaccine mandates, “especially given the obvious failure of the shots to stop transmission.”

Precedent

Brian Giesbrecht, a retired judge and senior fellow at the Frontier Centre for Public Policy, also said he believes that the committee’s ruling on Section 7 was “just one ruling at a fairly low level” and that he doesn’t “think it’s going to go anywhere.”

“The Canadian courts, with very few exceptions, were very disappointing to people who are concerned about civil liberties. The court’s response was basically, ‘If the public health officials make a decision, then we’re just going to rubber stamp it.’ So I’m pessimistic that this one ruling is going to make much of a difference.”

Giesbrecht said many judges had ruled that “keeping Canadians’ safe trumps civil liberties” during the pandemic, pointing toward a October 2021 ruling by a Manitoba judge that found public health orders to limit the rights and freedoms of people were justifiable and reasonable.

“The judge basically deferred to the public health people and said, ‘No, if the public health people say something, we’re basically going to do it,’” he said. “That’s obviously a simplistic summary of what the judge said, but that is what Canadian courts did right across the land. Whatever the public health people said, the courts did.'”

Alberta-based lawyer Catherine Christensen of Valour Law, which filed the class-action lawsuit on behalf of the CAF members, said the suit’s success would “set a precedent” for other similar cases across Canada.

Christensen said the lawsuit could have a binding precedent on other Federal Court cases involving industries like the federal public service, airlines, and railways. She said that while it would not be binding on superior courts in the provinces, for instance, it would have an influence.

“Our courts made their opinions pretty clear about how they feel about a lot of this, but maybe it’s time for them to change their mind,” she said.