# 2022-181 Careers, COVID-19

Case summary

F&R Date: 2023-12-21

The grievor received a remedial measure (RM) as a result of non-compliance with the Canadian Armed Forces (CAF) COVID-19 vaccination policy. The grievor disagreed with the RM, stating that the described deficiency did not exist because their refusal to comply with the vaccination policy did not constitute disobeying a lawful order. The grievor also argued that the privacy of their information was not protected, and procedural fairness was not respected.

An Initial Authority decision was on file; however, it was set aside because the decision being grieved concerned a decision, act, or omission of the Chief of the Defence Staff.

The Committee conducted an in-depth analysis of whether the CAF vaccination policy infringed on the protected rights under section 7 the Canadian Charter of Rights and Freedoms (the Charter), namely the right to liberty and security of the person. The Committee concluded that the CAF vaccination policy infringed on these rights and that their limitations was not in accordance with the principles of fundamental justice. This was because the Committee viewed the policy, in some respects, to be arbitrary and overly broad, and because its implementation was disproportionate. This led to a full analysis of whether such limitation is justified under section 1 of the Charter.

The Committee found that the CAF had not shown that consideration of the public interest justified the overly broad and disproportionate implementation of the vaccination policy, despite the high vaccination rate within the CAF and without regard for the members' occupation, duties, and place of work. The Committee concluded that the CAF had not met its obligation to ensure minimal impairment in the implementation of its vaccination policy. The Committee therefore concluded that the limitations were not justified under section 1 of the Charter.

The Committee then addressed the grievor's privacy concerns related to their vaccination status attestation. The Committee referenced section 8 of the Charter, permitting reasonable intrusion on an individual's privacy when the state has a legitimate interest in doing so, as well as the Privacy Act and relevant jurisprudence. The Committee concluded that the requirement to disclose vaccination status was justified, proportional, and did not breach the grievor's right to privacy.

Finally, the Committee found that the RM should not have been issued as the grievor was exercising a protected Charter right. The Committee also found that this administrative action was unreasonable due to serious breaches of procedural fairness.

The Committee recommended that the Final Authority cancel the RM and remove all associated documentation from the grievor's file.