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COVID-19: Supreme Court upholds vaccination requirements for sea, air and rail transport – operational implications and strategy

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context

In the fall of 2021, Canada’s Minister of Transportation issued a ministerial decree making vaccination mandatory for federally regulated sea, air and rail transportation in the context of the COVID-19 pandemic.

The United Steelworkers challenged some of these ministerial orders through judicial review1alleging that they have violated the right to liberty and the right to security of the person protected by Section 7 of the Act Canadian Charter of Rights and Freedoms (the Charter).

On July 5, 2022, the Quebec Superior Court, led by Judge Mark Phillips, denied the United Steelworkers’ motion for judicial review.2 In order to review the legality and constitutionality of the Canadian Department of Transportation’s orders, Judge Phillips had to rule on the following three questions:

  1. Do the contested provisions of the Ministerial Orders infringe the right to liberty or the right to security of the person under Article 7 of the Charter?

  2. If so, is there otherwise a violation of one or more principles of fundamental justice?

  3. If the answer to the first two questions is yes, is the violation of Section 7 by Section 1 of the Charter justified?

Reasons for decision

It should be noted at the outset that on June 20, 2022, during the Superior Court deliberations, the final forms of vaccination requirements issued by Canada’s Department of Transportation were vacated, voiding the United Steelworkers’ motion for trial. Despite this, the court decided to exercise its discretion and settle the matter.

After a detailed analysis of the applicable principles of law, Judge Phillips answered the first question by finding that Section 7 of the Charter had been violated. According to the judge, the combined effect of the (not absolute) obligation to vaccinate and the associated consequences for the individual in the event of a refusal, i.e. the loss of a job, lead to a concrete compulsion that emphasizes the decision to consent to medical treatment or not. Therefore, according to the judge, this is a violation of the freedom of the individual.

In addition, there is also an interference with the security of the person in the form of a violation of psychological integrity, since the psychological damage suffered by the plaintiffs can be attributed in particular to government intervention.

In the second question, whether there was also a violation of one or more principles of fundamental rights, the Court had to decide at this point whether the vaccination requirement was arbitrary, excessive or grossly disproportionate.

According to Judge Phillips, the measure was clearly not arbitrary because it was directly related to their goal of limiting the risk of spreading the virus and ensuring transport safety.

It was also no exaggeration that compulsory vaccination in the workplace was considered necessary.

Finally, the plaintiffs argued that the measure was disproportionate because it was permanent, even though it attempted to fix a temporary problem. The court responded to this argument by saying that it minimized the seriousness of the situation the country faced as of fall 2021. The judge concluded that while the measure had a non-negligible impact on the individual, the impact was proportionate to the goal that was no less important.3

The central theses

This decision is consistent with previous rulings by administrative courts and courts, most of which have upheld mandatory workplace vaccination guidelines. The Court accepts evidence that vaccination is the best means for an employer to prevent the risk of contagion at work, to protect infected persons from severe forms of the disease and thus to protect the health and safety of its workers.

In a context where most health restrictions have been lifted, this reminder of the adequacy of immunization is not trivial. Additionally, the resurgence of COVID-19 cases in Quebec and Canada at the time of writing (in July 2022) is also a reminder that the topic is still relevant and will remain a hot topic.

The authors acknowledge the contribution of student Samuel Roy to this publication.

footnotes

1 Syndicat des métallos, Locale Section 2008 c. Attorney General of Canada2022 QCCS 2455.

2 It should be noted that despite the presence of numerous companies involved in this litigation, the mandatory vaccination guidelines proposed by these companies are not the subject of the request for judicial review. Sanctions against those who refuse to vaccinate are also not part of the debate.

3 Following his analysis, Judge Phillips also took the time to address the Canadian Government Counsel’s alternative argument that a breach of Section 7 of the Charter would be justified as a reasonable limit under Section 1 of the Charter, an argument with which he agreed.

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