# 2022-084 Careers, COVID-19

Case summary

F&R Date: 2023-10-27

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 policies. The grievor disagreed with the denial of his accommodation request, maintaining that he was not disobedient of the COVID-19 vaccination policy and that his sincerely held religious belief should be protected under the Canadian Human Rights Act.

The Initial Authority (IA) denied redress, stating that both the Chaplain and the Commanding Officer determined that the grievor's stated beliefs were not religious in nature. The IA found that the grievor was treated fairly and that his accommodation request was reviewed in consultation with medical experts, legal advisors and pastoral staff.

The Committee first addressed the grievor's religious accommodation request, finding that the grievor had not established a religious nexus to the request as required by Defence Administrative Order and Directive 5516-3, Religious or Spiritual Accommodation. The Committee found that the grievor's religious 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 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 these rights 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 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 release, 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 facilitate the grievor's re-enrolment in the CAF if so desired and eligible. The Committee also recommended that consideration be given to compensation for unjust release.