Federal Court of Canada favours maintaining CAF COVID 19 vaccination policy

Four Regular Force members of the Canadian Armed Forces (CAF), namely Lieutenant-Colonel Illo Antonio Neri, Warrant Officer Christopher Warren, Petty Officer 2^nd Class Shaun Kyle Charpentier,  Corporal  Ronald Robert Flynn, Corporal Brian William Rudling  and Corporal Marie-Gaelle Grenier who are unvaccinated moved the Federal Court of Canada (File number T-1813-21 and T-1870-21) for a temporary prohibitive injunction against the obligation for CAF members to be vaccinated for COVID 19.

In its decision  2021 FC 1443 issued on December 17, 2021, the Honorable Justice Janet Fuhrer found that none of the Applicants met the test for a temporary or an interlocutory injunction. The following are extracts of the judgement (click to read judgment here): 

[59] I find that what is at stake for the Applicants here is not forcible vaccination bur rather the consequences of one’s choice to remain unvaccinated.  The Applicants also have failed to provide any evidence or arguments to show that their interests outweigh the public interest in ensuring, to the extent possible, the readiness, health and safety of the Forces, the Defence Team, and the vulnerable groups they may be called on to serve, in the context of the COVID-19 pandemic.  

 

[73] I find that the balance of convenience favours maintaining the CAF Vaccination Policy for the public good and militates against granting the requested injunction. As mentioned above, the Applicants have failed to demonstrate that their interests outweigh the public interest in ensuring the readiness, health and safety of the Forces, the Defence Team, and the vulnerable groups they may be called on to serve, in the context of the COVID-19 pandemic. The evidence in the matters before me establishes that COVID-19 has posed, and continues to pose, a significant health risk to Canadians, including CAF members who may interact or serve with each other or the public in shared spaces. Infection can occur in shared spaces, even with physical distancing of two or more metres, because of aerosol transmission of the virus. The evidence establishes that vaccination significantly mitigates not only the risk of infection, but also the seriousness of infection if it occurs despite vaccination.

[74] I thus find that on balance, if the requested injunction were issued, material harm to the public interest would ensue, in terms of increased health risks to CAF members and the public they serve, as well as by undermining a measured, evidence-based response, in the form of the CAF Vaccination Policy, to a complex, continuously and rapidly evolving, significant public health emergency. These harms in my view significantly outweigh the harms identified by the Applicants if the injunction is not granted. The balance of convenience therefore favours refusing the requested injunction.