# 2022-273 Careers, COVID-19

Case summary

F&R Date: 2024-06-25

The grievor was recommended for release from the Canadian Armed Forces (CAF) as a result of non-compliance with the CAF COVID-19 vaccination policies. The grievor alleged that they were not granted procedural fairness in the decision to release them. The grievor also requested to change their release item from 5(f) – Unsuitable for further service, to 5(c) – Completed service for which required, of the Table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces. Further, the grievor alleged that vaccination status is private personal information as that his privacy rights were violated by the sharing of this information.

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 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 on 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.

The Committee then addressed the administrative actions taken against the grievor, namely the RM and release, and concluded that these should not have occurred as the grievor was exercising a protected Charter right. The Committee also found serious breaches of procedural fairness in the administration of these administrative actions.

As the assigned item of release must reflect the reasons leading to the CAF member's release, the Committee found that the reasons for the grievor's release did not align with the circumstances set-out in the Queen's Regulations and Orders for the Canadian Forces for the assignment of item 5(c). Furthermore, the Committee found that disclosure of the grievor's vaccination status was proportional to the objective of ensuring the health and safety of all CAF members and that his pivacy rights had not been violated.

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. Alternatively, the Committee recommended that consideration be given to financial compensation for unjust release.