# 2023-044 Careers, COVID-19

Case summary

F&R Date: 2023-08-28

The grievor received remedial measures (RM) and was subject to an administrative review (AR) process as a result of non-compliance with the Canadian Armed Forces (CAF) COVID-19 vaccination policies. The grievor disagreed with the denial of his accommodation request pursuant to section 7 of the Canadian Charter of Rights and Freedoms (the Charter) and the Canadian Human Rights Act (CHRA), based on informed consent to medical treatment, and his personal conviction that no human being has the right to mandate what he puts into his body. He also disputed the legal, moral and ethical validity of the CAF vaccination policies.

There was no Initial Authority decision, given that the decision being grieved concerned a decision, act or omission of the Chief of the Defence Staff.

The Committee first addressed the grievor's accommodation request, finding that the grievor had not established a prima facie case of discrimination based on a prohibited ground found in the CHRA. The Committee found that the grievor's accommodation request was treated and considered reasonably.

The Committee then conducted an in-depth analysis of whether the CAF vaccination policy infringed on the protected rights under section 7 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.

Additionally, the Committee found that the administrative actions against the grievor, namely the RM and the initiation of the AR process, should not have occurred as the grievor was exercising a protected Charter right. The Committee also found that these administrative actions were unreasonable due to serious breaches of procedural fairness.

The Committee recommended that the Final Authority cancel the RM and remove documents pertaining to the RM and the initiated AR from the grievor's records.