B.C. court tosses Charter challenge by City of Quesnel workers fired over vax mandate

The B.C. Supreme Court has thrown out a legal challenge by a group of City of Quesnel workers dismissed because they refused to be vaccinated against COVID-19.

However the court didn’t rule on the constitutionality of the municipality’s mandate, but rather dismissed it because it lacked jurisdiction.

The workers were members of the Canadian Union of Public Employees, and thus issues, such as dismissal, covered by their collective agreement must be adjudicated through grievance procedures and arbitration under the Labour Relations Code, Justice Nathan Smith ruled.

The plaintiff’s lawyers argued that despite the provisions of the labour code, the case belonged in court because the vaccine mandate was aimed at a broader “social or collective good” not just the relationship between employer and employee, and that the workers had no expectation they’d be treated fairly in the grievance process due to “the animosity that has been demonstrated to unvaccinated persons in Canada.”

Smith rejected both arguments.

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“The plaintiffs argue that they are raising serious and novel questions of law that are of general importance and beyond the jurisdiction of an arbitration board. Those issues include the legality of vaccination requirements instituted by employers, the constitutionality of such requirements if they are imposed by government, and the necessity or efficacy of vaccines,” Smith ruled.

“The plaintiffs may be correct that some or all of the issues they seek to raise need to be litigated, but it is still necessary that issues come before the court in an action properly framed to raise them.”

Smith went on to state that the fired workers complaint goes to “the very core of collective bargaining” because there are “few aspects of a collective agreement as fundamental” as just cause for dismissal.

He noted that the workers had brought the suit in their individual capacities as former city workers, and did not claim to represent anyone else as in a certified class action or as purely public interest litigants.

The broader general rights and policy issues the plaintiffs seek to raise are “too closely intertwined with collectively bargained rights to be sensibly separated,” the ruling states.

An additional claim against the province was dismissed because it had no legal part in their employment.

However, it did not rule out a future legal challenge, if argued differently.

“The plaintiffs clearly wish to challenge the provincial policies and recommendations which they say have impacted employees of ‘countless other businesses,’” Smith wrote.

“There is probably a cause of action and form of proceeding that would allow them to do so, but an action in which they claim damages arising out of their loss of employment with the city is not one that properly raises those issues.”

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