Applicants failed to prove serious issue and irreparable harm
The Federal Court of Canada dismissed a motion for interlocutory injunction to enjoin a vaccination policy issued by the Treasury Board of Canada requiring all members of the core public administration to be vaccinated. Under the policy, failure or refusal to be vaccinated would result in being placed on unpaid leave or termination.
In Wojdan v. Canada (Attorney General) 2021 FC 1341, Adam Wojdan and his co-applicants are members of the core public administration and they refuse to be vaccinated against COVID-19. While the policy allows mandatory testing as an alternative to vaccination for medical, religious or other prohibited grounds for discrimination, it is not available for those who simply wish to remain unvaccinated.
They applied for an interlocutory injunction to stay the operation of the policy pending determination of their application for judicial review, claiming that the policy infringes their rights under the Canadian Charter of Rights and Freedoms.
The Federal Court refused to grant the interlocutory injunction.
In an application for interlocutory injunction, the applicant must establish a serious issue to be tried, irreparable harm if the stay is not granted, and that the balance of convenience favours the applicant, said the court.
The court found no serious issue in this case. Since the claims concern the employer-employee relationship, they are labour disputes falling under the jurisdiction of the Federal Public Sector Labour Relations Act (FPSLRA), said the court. Employees may present their individual grievances to the FPSLRA and in fact, the respondent notes approximately 90 grievances related to the policy were received. While the court does have residual jurisdiction to intervene – such as when there is a gap in labour adjudication – the applicants failed to demonstrate the same, said the court. Further, the exercise of any residual discretion by the Federal Court would undermine the labour grievance process enacted by Parliament, said the court.
Despite claiming that the policy was not directed toward labour relations but part of a broader government initiative to encourage vaccination, the applicants offered no evidence to support it, said the court.
The court also ruled that the applicants failed to establish irreparable harm. The applicants assert that because of the policy, they risk losing their employment and lost wages. Buy beyond this, they claim that the case is “about preserving [their] right to refuse medical treatment, without the threat of financial reprisal, stigma, and social isolation.”
However, citing Lavergne-Poitras v Canada (Attorney General), 2021 FC 1232, the court said that “the loss of employment, while a significant and important consequence, is something that can be compensated in monetary damages.”
“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,” said Justice Simon Fothergill, the author of the decision.
Having failed to establish the elements required, the court dismissed the motion for interlocutory injunction.
