A class action alleging federal government employees’ Charter rights were violated by a mandatory COVID-19 vaccination policy is moving forward after the Federal Court of Canada Jan. 2 rejected a federal government motion to dismiss the case.
The original statement of claim had asserted the policy on COVID-19 vaccination for the Core Public Administration (CPA), including the RCMP, violated Charter freedom of association rights and also committed the tort of misfeasance in public office.
The policy was issued by the Treasury Board of Canada on Oct. 6, 2021.
It required all employees of the government’s CPA to be vaccinated against COVID-19, with certain exceptions.
It said employees unwilling to be vaccinated or to disclose their vaccination status were placed on administrative leave without pay.
The proposed class proceeding was filed by Stacey Helena Payne, John Harvey and Lucas Diaz Molaro on Oct. 6, 2023, and was heard by Justice Richard Southcott in Vancouver.
The plaintiffs pleaded that they were former unionized employees of the CPA until either they were suspended or they resigned pursuant to the policy.
Payne was an employee of the Department of National Defence until she was suspended Dec. 15, 2021. Harvey was an employee with the Correctional Service of Canada until he was suspended March 11, 2022. And, Molaro was an employee of the Federal Economic Development Agency for Southern Ontario until he resigned on Oct. 25, 2021.
They alleged the policy violated their Charter rights to freedom of association by imposing a new term and condition of their employment by the Treasury Board in the absence of collective bargaining or other agreement, consideration, or consent.
Motion to dismiss
On Aug. 19, the federal government filed a motion to dismiss the claim.
The government argued the court had no jurisdiction in the issues because they are subject to grievance rights under the Federal Public Sector Labour Relations Act.
It was on that issue that Southcott agreed.
But, on the Charter claims, the judge said, “it is not plain and obvious that the plaintiffs have grievance rights in relation to those claims.”
Further, the government said, pleadings disclosed no reasonable cause of action in relation on the tort of misfeasance in public office. There, the judge said, the employees do have grievance rights, which makes that claim outside the court’s jurisdiction.
Southcott said the class action is still some distance from being certified, and the parties have yet to begin litigating in detail which employees might be covered in the class definition.
