# 2022-121 Careers, COVID-19

Case summary

F&R Date: 2024-03-08

The grievor received remedial measures and was released from the Canadian Armed Forces (CAF) as a result of non-compliance to the CAF Covid-19 vaccination policy. The grievor disagreed with the denial of accommodation request he had submitted based on the Canadian Human Rights Act and on his religious beliefs. He said that under section 126 of the National Defence Act, individuals who refuse to submit to immunization and who can prove their sincere religious or other beliefs should not be charged under this section.

The Initial Authority declined to review the grievance, given that the decision being grieved concerned a decision, act or omission of the Chief of the Defence Staff.

The Committee first addressed the grievor's religious accommodation request, finding that the grievor had failed to establish the religious nexus required to grant a religious accommodation 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 had been reasonably assessed and considered. 

The Committee conducted an in-depth analysis of whether this 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 their limitation 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 to examine if such limitations were 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.

The Committee also found that the administrative measures against the grievor, namely the remedial measures and the 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 (FA) cancel the remedial measures and facilitate the grievor's re-enrolment, if he remained eligible and wished to. The Committee recommended that the FA consider awarding the grievor financial compensation for being unjustly released.