# 2022-183 Careers, COVID-19, Gender-Based Analysis Plus, Pregnancy

Case summary

F&R Date: 2025-03-31

The grievor contested the denial of her accommodation requests pertaining to the Canadian Armed Forces (CAF) COVID-19 vaccination policy, as well as the remedial measures (RM) issued for non-compliance with this policy. She also argued she was not treated in accordance with policy regarding her pregnancy and there was a lack of Gender-based Analysis Plus (GBA Plus) conducted on the vaccination requirement.

Except for the grievance pertaining to the RM, the Initial Authority declined to review the grievances given that the decision being grieved concerned a decision, act, or omission of the Chief of the Defence Staff (CDS). 

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 (DAOD) 5516-3, Religious or Spiritual Accommodation. The Committee also addressed the grievor's accommodation request based on sex due to pregnancy under the Canadian Human Rights Act, finding that the grievor had not met the legal test for discrimination and she was not subjected to discrimination based on her sex. 

The Committee then conducted an analysis of whether the CAF vaccination policy infringed on the grievor's 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 the rights protected under section 7 of the Charter and that the limitation 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 and conclusion that such limitations were not justified under section 1 of the Charter. 

The CDS rendered decisions in previous grievances on this subject, finding that the mandatory vaccination requirement did not engage the grievors' section 7 Charter rights. If those rights were engaged, then the CDS concluded that the restrictions would be in accordance with the principle of fundamental justice pursuant to the proportionality analysis under section 1 of the Charter. Consequently, the Committee conducted additional review and considering the state of law, its position remained that the limitation imposed on their Charter rights was not justified under section 1 of the Charter. 

The Committee subsequently found that the RM and the Recommendation for Release the grievor under item 5(f), Service Completed – Unsuitable for further service, of the Table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces, were unreasonable due to serious breaches of procedural fairness.  

The Committee also found that the absence of any application of GBA Plus represented a gap in the policy and suggested that the Final Authority (FA) consider applying this lens on future vaccination policies.

Finally, the Committee found that the grievor was not treated in accordance with the applicable rules during her pregnancy, namely DAOD 5003-5, Pregnancy Administration, Canadian Forces Health Services Group (CF H Svcs Gp) Instruction 3100-23, Medical Administration of Pregnant Members, CF H Svcs Gp Instruction 4440-20, Reproductive Hazards, and Standard 6635-20, Immunization – Screening Patients for Vaccine Contraindications and Precautions. 

The Committee recommended that the FA cancel the RM and the Recommendation to Release and remove the associated documents from the grievor's file.