Soldiers’ Class Action Lawsuit on COVID Policies Dismissed by Federal Court

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

A federal judge has dismissed a class-action lawsuit concerning COVID-19 vaccine mandates and policies, ruling that the statement of claim filed by 330 active or former members of the Canadian Armed Forces (CAF) failed to disclose a reasonable cause of action.

Justice Catherine Coughlan wrote in a Nov. 13 ruling that the plaintiffs failed to “establish all elements of the alleged cause of action,” in their pleading.

Coughlan agreed with the Canadian government, saying the court should decline to exercise its jurisdiction over the matter and instead let the CAF’s internal grievance process address the cases.

Hundreds of CAF members filed a $500 million class-action lawsuit with the Federal Court in June 2023, alleging the CAF “rushed an untested product onto its members,” made false statements about the vaccine’s safety and efficacy, and did not give adequate options for members to refuse the vaccine.

The CAF imposed a COVID-19 vaccine mandate in the fall of 2021 that led to hundreds of members being either voluntarily released or expelled from the force for non-compliance. The military eventually relaxed the mandate in October 2022 by eliminating vaccination as a condition of service, but it remained compulsory for certain operational roles.

The lawsuit alleged the CAF prioritized “political agendas” when implementing the COVID-19 vaccine mandates,  according to a statement of claim filed with the Federal Court. It also accused the CAF of abusing its power by ignoring express legislative limits on its actions, laws on the right to privacy and the right to choose medical treatment, and laws concerning informed consent and religious and spiritual beliefs.

The lawsuit was filed against former Chief of the Defence Staff General Wayne Eyre, former Vice Chief of the Defence Staff Lieutenant-General Frances Allen, former Minister of National Defence Anita Anand, former deputy minister of national defence Jody Thomas, and others.

The lawsuit also alleged the CAF vaccine directives violated the plaintiffs’ rights under the Canadian Charter of Rights and Freedoms, including Section 2(a) by violating their freedom of conscience and religion, Section 2(d) by violating their right to associate in collective action and achieve workplace goals, Section 7 by infringing upon their right to liberty and security of the person, Section 8 by violating their right to privacy, and Section 15 by violating their right to equal protection and benefit of the law without discrimination.

An independent military administrative tribunal found in repeated rulings that the CAF’s vaccine mandate violated the Section 7 Charter rights of members who refused vaccination, with the policy being “overly broad” and in some respects “arbitrary.” The Military Grievances External Review Committee, which provides recommendations to the chief of the defence staff that are non-binding, was processing 140 grievances related to the CAF’s COVID-19 policies as of late February, and 58 related grievances had been processed.

Charter Rights Not Violated: Ruling

Coughlan said the plaintiffs’ claims that CAF members’ Charter rights had been violated were dismissed because they failed to provide sufficient materials to support the allegations.

None of the plaintiffs adequately identified how a religious belief was infringed upon, how their right to freedom of association was violated, how being forced to work from home was discrimination, or how the vaccine mandates were “overbroad, and therefore contrary to the principles of fundamental justice,” she wrote.

Coughlan also ruled that Section 7 of the Charter is not infringed by vaccine mandates because they are not “contrary to the principles of fundamental justice,” which was ruled in 2021 during a case when a Transport Canada supplier argued that Charter right was violated by COVID-19 vaccine mandates.

The plaintiffs filed affidavits that pre-dated the initial statement of claim, while also failing to reference some of them in the plaintiffs’ formal written statements, the judge said. This improper filing of materials meant that Coughlan did “not consider them in my analysis.”

While the lawsuit suggested the Canadian government acted unlawfully by implementing the vaccine mandate directives, it did not establish how they were unlawful or unlawfully ordered, Coughlan said. The judge also took issue with “vexatious” language, such as calling the COVID vaccines “experimental gene therapy” and using quotation marks to call the COVID-19 pandemic an “emergency” without indicating why the quotations were used.

The judge called some of these assertions allegations of “bad faith” because they were made without evidence. This, she said, constituted an “abuse of process” according to a previous court ruling from 2010.

The plaintiffs were ordered by the judge to pay legal costs of $5,040.

Valour Law attorney Catherine Christensen, who represented the plaintiffs said her firm respected the court’s decision and will “continue to explore all avenues available to us to ensure that justice is served for our clients.”

“This case has highlighted the need for reform of the military administrative system which routinely denies CAF members their ability to hold leadership to account for unlawful orders and abuses within the ranks,” she said in a statement on social media platform X.