Recently, we wrote about an Ontario case in which a court first issued and then dissolved an interim injunction against the termination of hospital employees who had failed to comply with the employer’s mandatory COVID-19 vaccination policy. In the result, the court ruled that the unionized employees would have to proceed with their claims through arbitration, not the courts, and found that the non-unionized employees could file later claims for compensation but could not seek an injunction as a remedy.
This week, we look at a Quebec decision on a similar issue, in which the court stated that it would have refused to issue an injunction against the provincial government’s decree that healthcare workers receive the COVID-19 vaccine or risk being suspended without pay.
Quebec Issues and Then Rescinds Decree on Health Care Vaccination
At issue was the government of Quebec’s announcement on September 7, 2021, that it was making COVID-19 vaccination mandatory for all health care employees in the province. The decree was issued on September 24, 2021. It initially set a deadline for October 15, 2021, after which employees who were not vaccinated against COVID-19 would be suspended without pay. The government later pushed back the deadline to November 15, 2021.
In response, health care workers filed a court application seeking an injunction against the vaccine mandate until they could file a full legal challenge against the decree.
However, before the injunction case could be heard, the government announced it was not going to move forward with its plan to suspend workers.
The court nonetheless agreed to hear the case, stating that it found it preferable to issue a judgment despite the government’s decision.
Court Sets Out Context of its Decision
At the outset, the court clarified that it would not be deciding the case on its merits or analyzing the legal challenge by workers against the decree itself, but rather determining whether the injunction should be issued using the applicable criteria.
The court further clarified that there was no legal right to refuse to be vaccinated against the government’s wishes in the case of a threat to public health. It explained that, under Quebec’s Public Health Act, the government is entitled to intervene when necessary by various means. Therefore, the court’s role would be to ensure that the government was enforcing its rights in a manner that was consistent with The Constitution Act, the Canadian and Quebec Charters and the enabling statute.
Court Sets Out Criteria for Issuance of Injunction
In determining whether to issue the injunction, the court first stated that a decision to grant or deny an injunction is discretionary to the court. However, the court must exercise its discretion based on well-established criteria. It set out the relevant criteria that must be met by the applicants as follows:
- There must be an emergency situation, real and objective, that justifies the court’s immediate intervention rather than at a later stage of the proceedings;
- There must be an appearance of right or a question to be judged which appears serious after a preliminary study of the merits of the dispute;
- There must be a potential for serious or irreparable harm if the injunction is refused; and
- The balance of inconvenience as to which party will suffer the most harm must weigh in the favour of the applicants if the injunction is not issued.
Court Refuses to Issue Injunction Against the Government Decree
On the first criterion, the court ruled that the application met the criteria of urgency, despite the fact that the decree may never come into effect.
On the second criterion, the court held that the applicants had established an appearance of right because they had submitted serious questions on both the merits of the case and at the injunction stage, as well as demonstrating standing to bring their claim.
As for the possibility of serious or irreparable harm, the court took into account the following findings. First, it held that the decree did not physically force the COVID-19 vaccine on the workers and therefore did not create a physically irreversible situation. Second, it found that the suspension of the workers was a reparable, rather than irreparable, harm were the decree to be ultimately declared invalid on the merits. Finally, the court found that any alleged harm that may result from the suspension of health care workers on the health care system was merely hypothetical. As such, the court found that the applicants had failed to meet the third criterion, ruling that there was no evidence of any serious or irreparable harm if the injunction was not issued.
Despite finding that the applicants had failed to prove their case on the third criterion, the court nonetheless went on to examine the fourth as to what the balance of inconvenience for the parties would be. Ultimately, it held that the balance of inconveniences favoured the government when comparing the harm suffered by the health care workers with that of the government because the workers had failed to rebut the presumption that the decree had been issued in the public interest.
In the result, the court, therefore, ruled that it would not have issued an injunction against the government decree. The court concluded by stating:
“That said, it is possible that the executive branch and the government may have made the wrong choice of means to protect public health in this time of health emergency. But it is not for the court to substitute its opinion for that of the government. On these questions of expediency, it will be up to the voters to judge.”
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’s 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.