The attempt by two lawyers from the Department of Justice to have the vaccination obligation imposed on federal employees invalidated failed: the Federal Court rejected their request, before trial, judging that it had “no chance” of success.
To date, the Federal Court has refused to allow actions brought against compulsory vaccination, either by federal officials or by federal government contractors.
This had not cooled the two lawyers, who had brought their own appeal: they maintained that they had different, and more solid, arguments to put forward. Not being vaccinated, they were put on unpaid leave last November.
No sooner had their appeal been filed than the federal government decided to file a motion to have it dismissed immediately, without waiting for a trial. This motion was pleaded on January 18.
The federal government had argued that their request is “premature” because it believes that they should proceed through the grievance procedure provided for in their collective agreement. In short, they must first exhaust all other available administrative remedies, he argued.
The two lawyers had however retorted, and pleaded, that they could not make a grievance, because it requires the support of their union – which it refused them.
On Monday, Judge Mireille Tabib agreed with the federal government and ended the appeal of the two lawyers.
For the magistrate, the grievance mechanism provided for in the Act “is not clearly excluded” in their case: “in the absence of exceptional circumstances, the request is doomed to failure, the plaintiffs being required to avail themselves of the grievance procedure before being able to apply to the Federal Court for judicial review,” she wrote in her decision issued on Monday.
The two lawyers raised several factors which, in their view, constitute “exceptional circumstances” which would nevertheless justify allowing the judicial review to continue, including the following: the importance of the question of law to be decided, the interest of to quickly determine an issue that affects a large number of employees in the public and private sectors in Canada and the fact that complying with the vaccination policy by being inoculated is an “irreversible act”.
These are not exceptional circumstances, ruled the judge before removing their appeal from the list of the Federal Court.
Lawyers can appeal this decision. One of them, Me Jocelyne Murphy, indicated that they would both take the time to analyze the judgment in detail and evaluate all their options.