A Federal Court of Canada judge has rejected Ottawa’s move to dismiss the case involving Federal employees who were wrongfully terminated or suspended for not taking the COVID vaccine, may eventually they may have their day in court.
In this decision, Justice Southcott considered a motion by the defendant, the King (Federal Government), to strike the entire Statement of Claim in a proposed class action without leave to amend. The claim, filed by Stacey Helena Payne, John Harvey, and Lucas Diaz Molaro, allegedly infringed on their rights to freedom of association under the Canadian Charter of Rights and Freedoms and committed the tort of misfeasance in public office regarding a COVID-19 vaccination policy for federal employees.
The court partially granted the motion, striking the claim related to misfeasance in public office, as this part falls outside the court’s jurisdiction due to employees’ grievance rights under the Federal Public Sector Labour Relations Act (FPSLRA). However, the court allowed the plaintiffs to amend the claim to include individuals not subject to FPSLRA grievance rights. Conversely, the court did not strike the Charter-based claims, allowing them to proceed because it was not plain and obvious that the plaintiffs’ grievance rights covered these claims. Thus, the motion was granted in part, yet dismissed the Crown’s motion regarding the Charter claim, with no costs awarded.
It is a small victory of sorts – it is but the beginning of a long legal process but the Crown is rarely faced with losing a motion on these COVID cases but here the government lost it in part. Normally, the govt gets its way – not this time. Here is the link to the full decision: https://canlii.ca/t/k8jck
