Last week the Federal Court of Canada issued a decision rejecting an applicant’s request for an injunction staying his employer’s covid-19 vaccine mandate.
The applicant, Mr. David Lavergne-Poitras, works for a company that is a supplier to the federal government, and captured by the government’s “COVID-19 vaccination requirement for supplier personnel”. This policy requires third party suppliers of the federal government who access any federal government workplace or interact with federal government personnel have in place a vaccine policy and requires such suppliers certify to the federal government that their workforce is fully vaccinated.
Mr. Lavergne-Poitras is not and does not wish to be vaccinated, and expressed concerns about side effects of vaccination. Pursuant to the supplier vaccine mandate, Lavergne-Poitras was scheduled to be laid off or terminated on 15 November 2021.
The applicant argues that the supplier vaccine mandate was invalid, overbroad, unsupported by evidence, disproportionate to its objective, and breached his rights to personal security under section 7 of the Charter of Rights and Freedoms.
On application for an injunction the applicant must show (a) a serious issue to be tried (b) that irreparable harm will flow if the injunction is not granted and (c) that the balance of convenience favours issuing the injunction to protect his Charter rights and those like him working for any of the federal government’s many suppliers.
The Honourable Justice McHaffie rejected the application.
Serious Issue: The Court held that, while the question of violation of Mr. Lavergne-Poitras s.7 rights was a serious issue, there was no serious issue to be tried either in respect of the claim that the alleged breach was arbitrary and constituted an affront to the fundamental principles of justice or in respect of the applicant’s claim that the government lacked proper authority to implement the policy. “A government action is not arbitrary simply because it
is in some way unsound or it fails to further the objective as effectively as a different action: Spencer v Canada (Health), 2021 FC 621 at para 122 citing Ewert v Canada, 2018 SCC 30 at para 73.”
And, while Mr. Lavergne-Poitras had standing to bring the claim in respect of his s.7 rights, he had no standing to challenge the authority or content of contractual terms agreed between the government and his employer.
As the Court did not find a serious issue to be tried with respect to the s.7 infringement, there was no need to consider the issue of justification under s.1.
Irreparable Harm: The Court further found that the injunction was not justified as the applicant did not face irreparable harm. If the applicant was laid off or terminated on 15 November, consistent with his employer’s agreement to the policy, but was later successful in arguing the merits at trial, the harm suffered by the job loss would be monetary in nature and can be completely compensated with an award of money: Blake v University Health Network, 2021 ONSC 7139
Balance of Convenience: Particular concerns arise in the context of applications for injunction against still-in-force and valid laws, described by the Supreme Court in Harper v Canada (Attorney General), 2000 SCC 57 at paras. 5 and 9:
Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough.
The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed. (emphasis added)
In the result, the Court held that vaccine mandates
are a rational response to a real and imminent threat to public health, and any temporary suspension of them would inevitably reduce the effectiveness of this additional layer of protection: Spencer v Canada (Attorney General), 2021 FC 361 at para 114.
Finally, the applicant sought a much more limited form of injunctive relief that would suspend operation of the policy only with respect to him or to his workplace; this alternative was denied for the same reasons as the substantial request.
Comment: Vaccine mandates are a rational response to a real public health threat. That different elements of the government’s policy response are not perfectly consistent or not the best theoretical response does not make those policies arbitrary or irrational. Lay off or termination does not constitute irreparable harm, as the lost wages may be replaced with monetary damages, and claims for injunctive relief against vaccine mandates will fail.
While the court did not engage in a section 1 analysis, the fact that the applicant could not raise serious issues in respect of alleged constitutional breaches strongly suggests that, were a serious issue raised, it would nonetheless fail the s.1 analysis set out in Oakes.