Federal Court of Canada Refuses to Issue Injunction Against Federal Government’s Supplier Vaccination Policy

Written on behalf of Peter McSherry

We have previously reviewed attempts in Ontario and Quebec by health care workers to obtain injunctions against the provincial governments’ vaccine mandates, both of which were refused by the courts.

This week we look at a similar attempt by a worker who applied to the Federal Court of Canada, seeking an injunction against the Canadian government’s supplier vaccination policy, claiming that it breached s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person.

Worker At Supplier Company Refuses to Get COVID-19 Vaccine

The worker was an employee at a company that is a supplier to the federal government. He had not been vaccinated against COVID-19 and stated that he did not want to do so. He was concerned about the potential complications, side effects, and risks associated with available COVID-19 vaccines.

However, on October 6, 2021, the Government of Canada issued a “COVID-19 vaccination requirement for supplier personnel” policy that requires personnel of third party suppliers to the federal government to be fully vaccinated against COVID-19 to access Government of Canada workplaces where federal government employees are present. The policy also requires suppliers to certify that their personnel who access federal government workplaces where they may come into contact with public servants are fully vaccinated. The policy was set to go into effect on November 15, 2021.

The worker’s company had provided the Canadian government with the certification required by the supplier vaccination policy.

Thus, as a result of the worker’s refusal to get vaccinated, the company had advised him that he would be laid off or terminated, along with other unvaccinated individuals, as of November 15, 2021, unless their vaccination statuses changed.

Worker Seeks Interlocutory Injunction Staying Canada’s Supplier COVID-19 Vaccination Requirement

The worker applied to the Federal Court seeking an interlocutory injunction staying the implementation of the Government of Canada’s supplier vaccination policy until his challenge on the merits could be heard.

The worker’s substantive argument against the government’s policy was that it had not been validly issued and that it breached his rights to liberty and security of the person guaranteed by s. 7 of the Charter. He claimed that the policy was unsupported by evidence and that it was arbitrary, overbroad, and grossly disproportionate to its objective.

Criteria for Interlocutory Injunctions and The Worker’s Arguments

In order to obtain an interlocutory injunction, it is well-established that an applicant must show three things: (1) there is a serious issue to be decided at the hearing of the ultimate application; (2) they will suffer irreparable harm if the injunction is not granted until the hearing; and (3) the “balance of convenience” favours granting the injunction.

Thus, on his motion before the court, the worker argued that he had raised a serious issue with respect to his challenges, that he would suffer irreparable harm if the supplier vaccination policy was not stayed, and that the balance of convenience favoured issuing an injunction so his Charter rights and those of other unvaccinated employees of government suppliers were not infringed between the hearing of the motion and the hearing on the merits.

Court Refuses to Issue Injunction, Finding No Serious Issue to be Determined

After first reviewing the context of the government’s policy and the worker’s arguments, the court set out to determine whether the first branch of the test for an interlocutory injunction had been met. It found that the worker had not.

First, the court found that there was no serious issue to be decided with regard to the government’s authority to issue and implement the policy. It noted that the policy did not mandate vaccination, but rather imposed terms on suppliers as a contractual matter. As such, the court held that the government had the authority to impose terms on tenders for future contracts as well as the authority to implement contractual terms with its co-contracting parties with respect to existing contracts. Finding that the supplier company, as a co-contracting party, had provided the certification required by the policy with respect to an existing contract, the court, therefore, held that there was no serious issue with respect to the government’s legal authority to issue the policy.

The court then turned to the worker’s s. 7 Charter argument. The court explained that in order to prove a s. 7 claim, the worker must prove two elements: 1) the impugned law or government action must deprive a claimant of the right to life, liberty or security of the person; and 2) the deprivation in question must not accord with the principles of fundamental justice. The court held that the worker had not raised a serious issue that any such deprivation was contrary to the principles of fundamental justice. As a result, the court ruled that he had not shown a serious issue to be determined that his rights under s. 7 of the Charter had been violated, stating:

“Here, the effect on [the worker] is that he will lose his employment since he chooses not to be vaccinated. This is not a direct impact on his physical integrity, but it remains a serious consequence. Despite this, I cannot conclude there is a serious issue that this deprivation is totally out of sync with the objective of the measure. The importance of protecting the health and safety of employees and the evidence of risks arising from COVID-19 infection allow for even the significant consequence of loss of employment with a third party supplier to the government to be proportional to the objective. [The worker] has not raised a serious issue that the effects of the supplier vaccination policy are grossly disproportionate to its purpose.”

Having held that the worker’s claim failed on the first branch of the test for an interlocutory injunction, the court refused to issue the injunction.

However, for the sake of completeness, it proceeded to examine the second and third branches, on which it held that the application also failed.

Contact Peter McSherry Employment Lawyer for Experienced Advice on Mandatory Employer Policies

If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.