Court Hears Motion to Dismiss Class-Action Lawsuit Against Military’s Vaccine Mandate

A Canadian flag patch is shown on an Armed Forces member's uniform in Trenton, Ont., on Oct. 16, 2014. The Canadian Press/Lars Hagberg

The Crown is asking the Federal Court to dismiss a class-action lawsuit by Canadian Armed Forces (CAF) members who say they were harmed by the COVID-19 vaccine mandates, arguing the claims are insufficient and there are adequate alternative remedies for the plaintiffs.

“We’re not talking about the individuals or what they’ve gone through,” said government lawyer Barry Benkendorf. “We’re talking about the legal impact of their action in terms of it being frivolous, which means that there’s not a legal basis for it, and if we proceeded to trial, it would not be successful.”

In June 2023, about 330 active or former CAF members filed a lawsuit seeking $500 million in damages, alleging that the military “rushed an untested product” onto members, made false statements about the vaccine’s safety and efficacy, and gave no option to members except removal from service. The lawsuit was filed against military leaders including then-Chief of the Defence Staff General Wayne Eyre, then-Minister of National Defence Anita Anand, and others.

The lawsuit alleged that the CAF vaccine directives violated the plaintiffs’ Section 2(a), Section 2(d), Section 7, Section 8, and Section 15 rights under the Canadian Charter of Rights and Freedoms.

The Canadian Armed Forces in fall of 2021 imposed a COVID-19 vaccine mandate on all members, with non-compliance leading to the loss of hundreds of members through voluntary release or expulsion under code 5(f), being “unsuitable for further service.”

Crown’s Arguments

Speaking at the Federal Court hearing in Edmonton, Benkendorf said the lawsuit was “frivolous” as there is no legal basis for it and it would not be successful in trial, and “vexatious” because many of its claims relating to “conspiracy theories” could not be proven. Benkendorf also said 34 affidavits adding up to 6,900 pages were submitted, but the plaintiffs’ argument only made reference to a few of them.

“It’s impossible to tell why these 34 affidavits were put forward, and it’s not really fair to the defendants or the court to have to wade through all of them without knowing what use is to be made of them.”

Benkendorf said many of the claims within the lawsuit were too “vague” and each party needed to clearly articulate the specifics in order to disclose a valid cause of action. He also said the group is not uniform, as some are still employed and were vaccinated, while others were released and remained unvaccinated.

“So it’s not a uniform group, and it just makes it that much harder to figure out what the claim is all about,” he said.

In response to the lawsuit’s claims around Charter violations, Benkendorf said the plaintiffs had failed to cite any cases where people in similar circumstances were successful in a Charter claim. He said the “law is clear” that there have been no Charter or privacy breaches arising from COVID-19 vaccine mandates.

Plaintiff’s Arguments

Lawyer Catherine Christensen of Valour Law representing the plaintiffs told the court that the case was not about COVID-19 policies, but about the CAF acting illegally and abusing its authority under the Charter. She said while there had been efforts to ensure impartiality within the CAF’s grievance system, “there is evidence to suggest those efforts are not sufficient.”

Christensen said the CAF members were seeking redress through the court because the military’s grievance process does not provide the appropriate remedy, and the chief of defence staff cannot grant monetary damages in the military system.

“Administrative review is not a substitute for these processes,” she said.

While the Crown argued that the plaintiffs did not have a case and had not established that the CAF acted unconstitutionally, Christensen said, “that is a matter for trial to decide if we need to meet the bar for unconstitutionality.”