In a recent decision, the Federal Court refused to grant an interlocutory injunction against a COVID-19 vaccination policy. The Applicants seeking the injunction were employees of the Government of Canada who refused to be vaccinated for a multiplicity of reasons. In their view, the mandatory vaccine policy infringed their rights at common law and under the Canadian Charter of Rights and Freedoms.

The Vaccination Policy

The vaccine policy in question was the “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police.” According to the Policy, failure or refusal to be vaccinated in accordance with the policy would result in administrative leave without pay or even termination. However, the Policy does provide for some accommodation, but only to those who are “unable to be fully vaccinated based on a certified medical contraindication, religion, or another prohibited ground of discrimination as defined under the Canadian Human Rights Act …”. Therefore, employees who simply do not wish to be vaccinated are not entitled to accommodation, as this would not amount to a prohibited ground of discrimination as defined under the Canadian Human Rights Act.

Should the Injunction be Granted?

Ultimately, the Federal Court declined to grant an injunction against the vaccination policy. To begin with, the Court did not believe they should exercise their residual discretion to intervene in a labour dispute that is barred by s. 236 of the Federal Public Sector Labour Relations Act. Instead, the employees should have pursued their individual grievances through that Act.

Nevertheless, the Federal Court went on to determine whether or not their refusal to grant an injunction against the Policy would result in irreparable harm to the Applicants that could not be compensated for in damages. According to the Applicants, this is not just a case about losing employment, but rather about preserving their “right to refuse medical treatment, without the threat of financial reprisal, stigma, and social isolation.”

In the Federal Court’s view, this mischaracterizes the harm at issue. According to the Court, the harm the Applicants may suffer, in reality, is being placed on unpaid leave or terminated if they refuse the vaccine. Notably, the Court said:

They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other […] Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.

 

Although it may seem as though mandatory vaccine policies at workforce employees to receive vaccines, they are not truly being forced because they retain throughout the ability to choose between the vaccine and their employment. The loss of employment, while a serious consequence, is reparable harm that can be compensated in monetary damages. It does not itself justify the imposition of an injunction such as that sought in this case.

As a result, the motion for an injunction against the vaccine policy was refused.