# 2022-030 Careers, COVID-19

Case summary

F&R Date: 2023-06-27

The grievor received a recorded warning (RW) because of non-compliance with the Canadian Armed Forces (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 disputed the legitimacy of CDS Directive 002, arguing that it failed to incorporate other vaccination-related policies in the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces. After being issued the RW, the grievor complied with the Directives and received the COVID-19 vaccination. The grievor sought to have the CDS Directives amended and the RW removed from their record.

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

The Committee conducted an in-depth analysis of whether the CAF COVID-19 vaccination policy infringed on the 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 COVID-19 vaccination policy infringed on the rights protected under Section 7 of the Charter and that the limitations of these rights was not in accordance with the principles of fundamental justice. This was because the Committee viewed the policy, in some aspects, 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 RW, should not have occurred as the grievor was exercising a protected Charter right. The Committee also found that the administrative action was unreasonable due to serious breaches of procedural fairness.

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 previous unreasonable versions. The Committee recommended that the Final Authority cancel the RW and have it removed from the grievor's personnel record.