The compulsory vaccination policy imposed by the federal government on its employees is the object of another attack. This time, it is two lawyers from the Department of Justice, whose job it is precisely to plead and defend the government against such challenges, who will fight in their own playground: the Federal Court.
Several challenges to this policy have already gone to Federal Court: a group of federal government employees and contractors, among others, have already sought to have it stayed pending the proper trial that will determine whether it is valid or not. These stay requests were dismissed, and the cases are continuing.
But the two lawyers who work in Montreal say they have other — and more solid — arguments to make to invalidate this policy. “We have an advantage, explained in an interview Mand Jocelyne Murphy, who challenges the policy in this case with her colleague Me Sherry Rafai Far. This is our area of expertise”.
The judges rejected the requests for suspension for this reason in particular: they ruled that the employees must first file a grievance and exhaust the remedies provided for in their collective agreement before going to Federal Court with a request to invalidate the Politics.
This is where there is a major difference, underlined Mr.and Murphy.
She explains that she has written proof that her union refuses to file a grievance on their behalf. In short, this recourse not being accessible to them, they cannot be blamed for not having instituted it, she maintains.
According to the lawyer, the policy violates provisions of the collective agreement for lawyers at the Department of Justice. Without forgetting that she considers that this vaccination requirement was imposed on them “unilaterally” without having been negotiated with the union as is normally the case. She also denounces that the federal government is dangerously interfering in the privacy of its employees.
She also argues that her own vaccination is not necessary to ensure the safety of other employees, given the nature of her work which does not involve contact with the public. She indicates that she has been working from home since March 2020 and that her employer has not once asked her to come to the office.
Me Murphy was put on leave without pay last November, when the vaccination policy came into effect.
Her refusal of the vaccine is based on her fears about the side effects of the vaccine: two of her relatives suffered serious consequences, she reports. In addition, the lawyer says she has a background in biotechnology and molecular biology. She worked as a lab technician who tested drugs and vaccines on animals. The knowledge acquired in this work thus dictates that she be cautious about administering such vaccines with so little hindsight, she explained: “I have the right to wait” before being inoculated.
With such a broad application policy, the government should allow managers to assess the individual cases of their employees, she continued. The only recognized exceptions are those requested for medical or religious reasons.
This policy would also be contrary, according to the two lawyers, to the Public Finance Act.
Why not participate in the other actions brought by federal officials?
Because the Federal Court, “it’s my area of expertise. I usually represent the federal government,” argued Ms.and Murphy, who has worked for the Department of Justice for 28 years: she says she knows exactly what to plead in such a case.
“Usually it’s David versus Goliath. We won’t be in a Titans fight anymore. »
The federal strikes back
The Attorney General of Canada does not want this case to go to trial. He wants to strike out the request of the two lawyers now.
He will also plead this Monday afternoon a request to get rid of it. The arguments he will present are only those aimed at putting an end to their request now: he will probably have others to offer if the case is pleaded during a trial.
To support this request, the lawyers for the Attorney General will argue that this vaccination policy is one of the conditions of employment of the two lawyers, which they must respect, it is alleged in the proceedings filed with the Court.
Moreover, he considers that their request is premature and that they must first exhaust all their recourses provided for in their collective agreement.
This is incorrect, reply the two lawyers in their documents. Because there is no “effective and adequate” remedy.
In addition, it would be in the “public interest” that the analysis of the legality of this policy be done as quickly as possible before other employers “impose it blindly”, argue Ms.and Murphy and M.and Rafai Far.