Judge tosses lawsuit against N.B. government over mandatory vaccine policy

A New Brunswick judge has thrown out a lawsuit against the province over its COVID-19 vaccination policy for employees. 

Justice Thomas Christie of the Court of Queen's Bench said the four applicants were not being forced to do anything, as they had argued. 

"In what can only be described as a rambling eight pages of stated 'grounds' in the application, counsel cast the underlying claim as if the applicants are being forced to do something against their will," Christie wrote in his decision, released on Thursday.

"They are not." 

Christie also noted some "peculiarities" with the argument made by the applicants, who were represented by James Kitchen, Andrew Clark and Caitlin Green.

"The applicants claim their bodily integrity is at stake, comparing themselves to victims of some of the most brutal of crimes," Christie wrote. "They go further and compare themselves with those who have been held against their will as slaves. Such comparisons are not statements that identify any legal grounds upon which they could properly rely."

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Arguments like those, he said, do not belong in a notice of application, "and, frankly, could undermine whatever legitimate issues may be otherwise hidden within such argumentative pleadings." 

On Oct. 5, Premier Blaine Higgs announced that all provincial government employees in the civil service, the education system, the health-care system and Crown corporations, as well as staff in long-term care facilities, schools and licensed early learning and child-care facilities must be fully vaccinated by Nov. 19.

Those who didn't meet the deadline, roughly 2,000 workers, were put on unpaid leave. 

The lawsuit was filed in November by four government employees — a teacher, a nurse, a health network administration assistant and an educational support teacher — who were all on unpaid leave. They claimed the province's requirement for all employees to be vaccinated was unconstitutional.

The province responded to the lawsuit with a motion, asking the court to dismiss it. A lawyer for the province argued that the issue should first be dealt with by an employee grievance process because that's what the law requires.

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Christie agreed. 

In his decision, he wrote that the Supreme Court "has consistently — and recently — reaffirmed that, for those for whom an adjudication regime exists, they must seek resolution in that form." 

He said the law is clear. 

"In circumstances like this, where adjudication provisions exist, the court has no role as a forum of first instance on the merits of the application." 

He also cited recent case law on the subject. In one decision, the court noted: "They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other." 

Another court stated, "what is at stake for the Applicants here is not forcible vaccination but rather the consequences of one's choice to remain unvaccinated." 

Lawyers for the four applicants said they were arguing on behalf of all New Brunswick government employees, but Christie said he wasn't prepared to consider such a broad scope. 

While other employees may have felt "deeply offended or conflicted by the policy," they complied with it out of duty, or concern for the welfare of their families, colleagues or the general public, Christie said. 

"The applicants have chosen instead to accept unpaid leave. I would think that, based on the present filings, it would be unwise to consider that the applicants' arguments apply to anyone but themselves."