# 2022-126 Careers, COVID-19

Case summary

F&R Date: 2023-12-12

The grievor received remedial measures (RM) and was released from the Canadian Armed Forces (CAF) as a result of non-compliance to the CAF Covid-19 vaccination policies. The grievor stated that no appropriate consideration was given to his accommodation request that he had submitted based on the Canadian Human Rights Act (CHRA). The grievor also stated that he did not receive an acknowledgement of the reasoning he provided for refusing the vaccination and no consideration of his performance or military career.

There was no Initial Authority decision, 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 accommodation request, finding that it had not been properly considered by the CAF. As such, the Committee found that the grievor's accommodation request was treated contrary to Defence Administrative Order and Directive 5516-0, Human Rights that articulates the CAF's commitment to ensuring that the members are treated fairly and respectfully, in accordance with the principles outlined in the CHRA.

The Committee then conducted an in-depth analysis of whether the CAF 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 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 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.