Does this mandatory vaccination policy contravene the collective agreement? What about Charter Rights? Will the AJC contest this policy or file an injunction in Federal Court?
First, the legal issue arising from mandatory vaccinations in the face of a global pandemic is uncharted territory. While we continue to assess the situation, the AJC it is not currently satisfied that the mandatory vaccination policy violates the Charter and, if the policy does violate the Charter, the AJC is satisfied that the Employer has a strong argument to uphold the policy, given the government’s pressing need to combat the COVID-19 pandemic and to protect health and safety of public servants. As well, the policy does not violate any of the protected grounds set out in our collective agreement. Therefore, the AJC will not be challenging the mandatory vaccination policy in court at this time.
Should the AJC be mistaken in its assessment regarding Charter violations, we are of the view that such a violation would be justified under s.1 of the Charter and the Oakes test, given the global and national pandemic health crisis. This view has recently been supported by the Superior court of Quebec in a decision from July 2022, in which the court found that the policy was not in violation of section 7 of the Charter, and was justified under section 1. Having said this, we continue to examine the existing policy to ensure that those requesting accommodation are treated fairly, reasonably and in good faith and that the Employer complies with its legal duty to accommodate.
Given that the AJC has been a proponent and strong advocate of the precautionary principle when it comes to health and safety as evidenced by its guidance to members on ensuring health and safety in court and tribunal proceedings as well as by formal submissions it has made to Treasury Board, the Department of Justice, Public Prosecution Services Canada, Courts Administration Service, Chief Justices and Attorneys General across Canada, and our support for the broadest possible form of vaccination, the AJC currently has no intention to initiate court injunctions or other grievance proceedings to challenge the mandatory nature of the policy.
The AJC will however consider individual grievance support requests relating to unreasonable, unfair and bad faith implementation of the policy or discretion under the policy, including the failure to accommodate on grounds protected under the AJC’s collective agreement ( i.e. age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, gender identity and gender expression, family status, mental or physical disability, membership or activity in the Association, marital status.)
The AJC may also consider policy grievances in connection with any process related issues that in our view undermine the terms of our collective agreement and our members’ rights thereunder, if after, providing the Employer with feedback, the Employer refuses to rectify the situation.
Even if the AJC were to initiate proceedings such as a grievance, the general rule for any employee is to comply and then grieve, otherwise known as the ‘work now, grieve later” rule. So, in very practical terms, there is no way of avoiding the consequences from a failure to comply by providing an attestation.