Federal Court rejects injunction against military vaccine mandate

Four Canadian Armed Forces (CAF) members, who asked the Federal Court to grant them a temporary prohibitive injunction against any enforcement of the military’s vaccine mandate, were rejected by the Court.

The four members applied for an exemption or accommodations as permitted by the CDS Directive and are waiting for a decision.

Evidence Considered

After considering the evidence, and the written and oral arguments of all four members, Federal Court Justice Janet Fuhrer found that “None of the Applicants has met the test for a temporary or an interlocutory injunction.

The Applicants have failed to establish a serious issue to be tried, or that the Court should exercise residual jurisdiction to grant the injunction they seek despite not having exhausted all alternative adequate remedies,” she continued, “Nor have they satisfied that the Court that they would suffer irreparable harm non-compensable by a monetary award, or that the balance of convenience favours granting a temporary or interlocutory injunction.”

Regarding the motion for a temporary injunction, the court’s role is not to answer questions about penalties that may be applied to the CAF or the Department of National Defence members, but rather decide if they have met the three-part test to gain a temporary injunction.

CAF Vaccination Policy

The CAF created the CAF COVID-19 Vaccination Policy, a series of three directives issued by the CDS on Oct. 8, 2021.

The first one lays the foundation for the policy and contemplates full vaccination of CAF members, attestation of vaccination status, and possible accommodation based on certified medical reasons, religious grounds, or another prohibited or comparable grounds of discrimination under the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].

The directive also outlines alternative and mitigating measures for those who did not attest to full vaccination by Nov. 15, 2021. The directive also outlines possible career impacts for remaining unvaccinated.

Directive 2 gives details regarding requirements for exemption or accommodation, and Directive 3 acknowledges delays in dealing with accommodation. In addition, the directive says members awaiting a decision on their accommodation requests won’t be put on remedial measures for non-compliance.

The Applicants

LCol. Illo Antonio Neri submitted his request for accommodation based on the right to privacy, bodily autonomy, and informed consent, as well as discrimination involving genetic characteristics, and was denied. He was sent a letter regarding the decision from the CAF where it also stated that CAF members, “cannot be forced or coerced into medical treatment including vaccines but emphasizes that the CAF has the right to determine its own employment standards,” as written in the court case.

WO Morgan Christopher Warren requested a religious exemption. No final decision has been made yet.

Cpl. Marie-Gaelle Grenier submitted her accommodation request under the CHRA for genetic discrimination and was denied because the reasons for her request didn’t fall within the criteria set out in the CAF Vaccination Policy. Subsequently, Grenier resubmitted a new accommodation request that is outstanding.

PO 2 Shaun Kyle Charpentier requested a medical exemption that remains outstanding. According to the court case, he is already scheduled to be released for medical reasons unrelated to the CAF Vaccination Policy.

Federal Court Decision

When Federal Court Justice Janet Fuhrer considered the following questions, she made the decision to dismiss the applicants’ motions for a temporary or interlocutory injunction to restrain the enforcement of any directive regarding a vaccine mandate, pending the outcome of their applications.

• • Is there a serious issue as to whether the Directives were issued validly?

  • Is there a serious issue as to whether the Directives and Aide-Memoire are unconstitutional by depriving the Applicants of their rights to religious freedom, liberty or security of the person and privacy that is not in accordance with the principles of fundamental justice, contrary to sections 2, 7, 8 and 15 of the Canadian Charter of Rights and Freedoms [Charter]?

  • If their requested injunction is not granted, will the Applicants be harmed irreparably between now and the hearing of their JR Applications?

  • Does the balance of convenience favour granting or denying the requested injunctive relief?

“I find that what is at stake for the Applicants here is not forcible vaccination but rather the consequences of one’s choice to remain unvaccinated,” said Fuhrer, “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.”