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COVID - Labour/Employment (2). Lavoie v. Canada (Attorney General)
In Lavoie v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this against "a decision by the Federal Public Sector Labour Relations and Employment Board ... . In its decision, the Board concluded that it did not have jurisdiction over the applicants’ grievances referred to adjudication under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the Act). Under that legislative provision, the grievances must relate to "“[…] a disciplinary action resulting in termination, demotion, suspension or financial penalty”"."
Here the court considered "the Policy on COVID-19 Vaccination for the Core Public Administration":[2] The Board dismissed the applicants’ grievances contesting the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (the Policy). The Board found that while the Policy did have adverse consequences for the applicants, it was essentially an administrative measure intended, among other things, to protect the health and safety of federal public service employees rather than a disguised disciplinary measure intended to punish employees who refused to be vaccinated. In the Board’s view, the applicants had not demonstrated that their grievances concerned a disguised disciplinary measure and could therefore be referred to adjudication to the Board under paragraph 209(1)(b).
[3] Now, on judicial review before this Court, the applicants raise numerous issues, both in their memorandum of fact and law and in their oral arguments. Certain issues raised in the memorandum were abandoned at the hearing. Nevertheless, I have carefully considered each one.
....
[6] The Board correctly identified the issue it was required to decide, namely whether placing the applicants on leave without pay constituted a disguised disciplinary measure. It reviewed the parties’ submissions, considered their extensive evidence, and provided detailed reasons in support of its findings. The decision considers the constraints imposed by the applicable legislative framework, namely paragraph 209(1)(b) of the Act and relevant case law.
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[9] The applicants further submit that the Board acted unreasonably by failing to take into consideration certain evidence, including evidence relating to vaccination rates, accommodation measures, and working-from-home arrangements, among other things. I disagree. The Board considered these elements. Rather, the applicants ultimately disagree with how the Board chose to characterize the evidence. While the applicants sought to demonstrate that the Policy was punitive and coercive, the Board found it to be administrative in nature. In the context of an application for judicial review, the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker and, absent exceptional circumstances, will not interfere with its factual findings: Vavilov at paragraph 125. I recognize that the applicants would have liked the Board to treat the evidence differently, but I am not persuaded that there is any reason to intervene on this basis.
[10] In summary, given the facts at issue and the evidence presented to it, it was open to the Board to conclude that the grievances did not raise a question of disguised discipline. . Canada v. Payne
In Canada v. Payne (Fed CA, 2025) the Federal Court of Appeal allowed the Crown's (who was a class proceeding defendant) motion to fully strike pleadings, this brought against a lower court ruling that only partially struck pleadings.
Here the court illustrates one outcome for some federal employees on non-compliance with COVID policy:[2] The statement of claim asserts causes of action under section 2(d) of the Charter and the tort of misfeasance in public office arising from the Treasury Board’s Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police. Under the Policy, subject to exceptions, all employees of the core public administration (defined under subsection 11(1) of the Financial Administration Act, R.S.C. 1985, c. F-11) had to be vaccinated against COVID-19. Those who were unwilling to be vaccinated or to disclose their vaccination status were placed on administrative leave without pay.
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