# 2022-035 Careers, COVID-19

Case summary

F&R Date: 2023-06-20

The grievor received remedial measures (RM) and was released from the Canadian Armed Forces (CAF) as a result of non-compliance with the CAF COVID-19 vaccination policy. The grievor contested the CAF COVID-19 vaccination policy pursuant to the Chief of the Defence Staff (CDS) Directives on CAF COVID-19 Vaccination, which were released in October and November 2021. The grievor contended that CDS Directive 002 unlawfully omitted references to other vaccination-related policies in the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces. The grievor also contended that CANFORGEN 012/22 - Application of [Defence Administrative Orders and Directives] DAOD 5019-2 – Administrative Review in Response to CDS Directives on CAF COVID-19 Vaccination, contradicted DAOD 5019-2 – Administrative Review, and denied them due process. As redress, the grievor sought to have CDS Directive 002 amended and the CANFORGEN cancelled.

There was no Initial Authority decision because the grievances were related to a decision, act or omission by the CDS.

The Committee conducted an in-depth analysis of whether the CAF vaccination policy infringed protected rights under section 7 of 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 the rights protected under section 7 of the Charter and that the limitations of these rights were not in accordance with the principles of fundamental justice. The Committee viewed aspects of the policy as arbitrary and overly broad, and considered its implementation as disproportionate. This led to a full analysis of whether such a 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. 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 found that the disputed provisions of the CAF COVID-19 vaccination policy were contrary to the Charter and as such, unreasonable. Therefore, the Committee found that the grievor was aggrieved by the CAF COVID-19 vaccination policy. The Committee noted that the disputed policy had been amended pursuant to CDS Directive 003 on CAF COVID-19 Vaccination, released in 2022, which superseded the earlier unreasonable versions from 2021.

The Committee recommended to the Final Authority (FA) that the RM issued to the grievor as a result of non-compliance with the CAF COVID-19 vaccination policy be cancelled and removed from their records. The Committee also recommended that the CAF cancel the related Administrative Review process and decision to release the grievor, and remove any related documents from their records. The Committee recommended that the FA facilitate the grievor's re-enrolment in the CAF, if the grievor so desired and was eligible. The Committee also recommended that consideration be given to financial compensation for the grievor.