Lavergne-Poitras v. Canada (Attorney General)

Lavergne-Poitras v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-11-13
Neutral citation
2021 FC 1232
File numbers
T-1694-21
Decision Content
Date: 20211113
Docket: T-1694-21
Citation: 2021 FC 1232
Ottawa, Ontario, November 13, 2021
PRESENT: Mr. Justice McHaffie
BETWEEN:
David LAVERGNE-POITRAS
Applicant
and
THE ATTORNEY GENERAL OF CANADA (Minister of Public Service and Procurements) AND PMG TECHNOLOGIES INC.
Respondents
ORDER AND REASONS
I. Overview
[1] David Lavergne-Poitras seeks an interlocutory injunction staying the implementation of the Government of Canada’s “COVID-19 vaccination requirement for supplier personnel” until his challenge to it is heard on its merits. The supplier vaccination policy, as I will term it, requires personnel of third party suppliers to the federal government to be fully vaccinated against COVID-19 to access Government of Canada workplaces where federal government employees are present. It also requires suppliers to certify that their personnel who access federal government workplaces where they may come into contact with public servants are fully vaccinated. If not stayed by the Court, the supplier vaccination policy will go into effect this coming Monday, November 15, 2021.
[2] Mr. Lavergne-Poitras is an employee of the respondent PMG Technologies Inc, a supplier to the federal government. He is not vaccinated against COVID-19 and does not wish to be vaccinated. As a healthy 35-year-old with a family history of heart disease, he is concerned about the potential complications, side effects, and risks associated with available COVID-19 vaccines. PMG has provided Canada with the certification required by the supplier vaccination policy. PMG has advised Mr. Lavergne-Poitras that because of the policy it will be laying off or terminating him and other unvaccinated individuals as of November 15, 2021 unless their vaccination status changes.
[3] Mr. Lavergne-Poitras argues the supplier vaccination policy was not validly issued, and that it breaches his rights to liberty and security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. He claims the policy is unsupported by evidence and that it is arbitrary, overbroad, and grossly disproportionate to its objective. His arguments on these issues will be decided at a later date at the hearing of his application. On this motion, Mr. Lavergne-Poitras argues that he has raised a serious issue with respect to his challenges, that he will suffer irreparable harm if the supplier vaccination policy is not stayed, and that the balance of convenience favours issuing an injunction so his Charter rights and those of other unvaccinated employees of government suppliers are not infringed between now and the hearing.
[4] For the reasons set out herein, I am dismissing the motion for an interlocutory injunction. A summary of these reasons is the following:
[5] Serious issue—Authority: Mr. Lavergne-Poitras has not demonstrated that Canada lacks authority to issue and implement the supplier vaccination policy. The policy imposes terms on suppliers to the Government of Canada as a contractual matter. Mr. Lavergne-Poitras concedes Canada has the authority to impose terms on tenders for future contracts. For existing contracts, Canada may seek to implement contractual terms with its co-contracting parties. PMG as co-contracting party has provided the certification required with respect to its existing contract. There is no serious issue with respect to the legal authority of the government to issue the policy. I also agree that as a third party to the contract between Canada and PMG, Mr. Lavergne-Poitras would have no standing to raise an argument about the authority to impose contractual terms.
[6] Serious issue—Section 7 of the Charter: Contrary to Canada’s arguments, I conclude that Mr. Lavergne-Poitras’ standing to raise his Charter arguments in the context of the contract between Canada and PMG is not so clear that the motion should be dismissed on this basis. Mr. Lavergne-Poitras has raised a serious issue to be determined as to whether there has been a deprivation of his right to liberty or security of the person. However, he has not, on the evidence filed on this motion, raised a serious issue that any such deprivation is contrary to the principles of fundamental justice. As a result, he has not shown a serious issue to be determined that his rights under section 7 of the Charter have been violated. I need not assess whether any such violation might be justified under section 1 of the Charter.
[7] Irreparable Harm: Even if I had concluded Mr. Lavergne-Poitras had established a serious issue to be determined, I find he has not established that if the injunction is not granted, he will suffer irreparable harm between now and the hearing of his challenge on the merits. Mr. Lavergne-Poitras has confirmed that he does not intend to get vaccinated. The harm he faces is the loss of his job. While this is a significant and important consequence, Canadian courts have confirmed that the loss of employment is something that can be compensated in money damages and is therefore not “irreparable harm” in the sense required to obtain an injunction.
[8] Balance of convenience: I also conclude the balance of convenience does not favour suspension of the policy. The harm to Mr. Lavergne-Poitras of losing his employment must be balanced against the risks of harm to federal government employees of having increased risk of transmission of the SARS-CoV-2 virus that causes COVID-19, including its variants. The Government of Canada has implemented a measured approach to the protection of its employees that includes reducing the risk of transmission by requiring personnel of suppliers who may come into contact with federal government employees, and only such personnel, to be vaccinated. Material harm to the public interest would arise if the requested injunction is issued, both in the form of increased health risks to federal employees and in the form of undermining a considered policy implemented by the federal government as employer. These harms significantly outweigh the harms identified by Mr. Lavergne-Poitras on this motion.
[9] Alternative relief: I have also considered Mr. Lavergne-Poitras’ request for alternative relief in the form of a more limited injunction staying the application of the supplier vaccination policy just with respect to his worksite or to him. The conclusions above apply equally to this request, and I agree with the Attorney General that there is no basis to exempt Mr. Lavergne-Poitras or his worksite in particular from the application of the supplier vaccination policy.
[10] The request for an interlocutory injunction is therefore dismissed. The Attorney General has confirmed they do not seek their costs.
II. Issues and Analytical Framework
[11] The injunction Mr. Lavergne-Poitras now seeks is a temporary one that will be in force until his challenge to the supplier vaccination policy can be heard on its merits.
[12] It is well established that to get such an interlocutory injunction, an applicant must show three things: (1) there is a serious issue to be decided at the hearing of the ultimate application; (2) they will suffer irreparable harm if the injunction is not granted until the hearing; and (3) the “balance of convenience” favours granting the injunction: RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at p 334.
[13] Each of these three elements must be met. However, they are not independent silos, in the sense that a stronger finding on one or more of the elements may lower the threshold for the other elements: Bell Media Inc v GoldTV.Biz, 2019 FC 1432 at para 56. In applying this three-part test, the “fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case”: Google Inc v Equustek Solutions Inc, 2017 SCC 34 at paras 1, 25.
[14] Mr. Lavergne-Poitras’ request for an interlocutory injunction therefore raises the following issues:
Is there a serious issue to be decided at the hearing of the application, and in particular:
(1) Is there a serious issue as to whether the supplier vaccination policy is validly issued?
(2) Is there a serious issue as to whether the supplier vaccination policy is unconstitutional by depriving of Mr. Lavergne-Poitras of his rights to liberty or security of the person in a manner that is not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
Will Mr. Lavergne-Poitras suffer irreparable harm between now and the hearing of the application if the requested injunction is not granted?
Does the balance of convenience favour granting or refusing the injunction?
As alternative relief, should the Court declare that the supplier vaccination policy does not apply to the facility at which Mr. Lavergne-Poitras works?
[15] Mr. Lavergne-Poitras also asks to be exempted from the usual requirement to give an undertaking to pay any damages that might arise from the injunction if it is ultimately determined it should not have been granted. The Attorney General did not oppose this request.
[16] I will address these issues after a review of the supplier vaccination policy and Mr. Lavergne-Poitras’ particular circumstances.
III. Factual Context
A. The COVID-19 pandemic and COVID-19 vaccines
[17] The health and societal impacts of the COVID-19 pandemic are well known. These impacts are described in evidence before the Court, in the form of an affidavit filed by the Attorney General from Dr. Celia Lourenco, a senior scientist with Health Canada responsible for authorization of the COVID-19 vaccines available in Canada. Dr. Lourenco’s affidavit discusses the health impacts of the COVID-19 pandemic, the developing knowledge and science with respect to the SARS-CoV-2 virus and COVID-19, and information regarding the development, approval, and monitoring of vaccines.
[18] As of November 9, 2021, Canada had seen a total of over 1.7 million diagnosed cases of COVID-19, resulting in 29,217 deaths. This represents approximately 1.7% of all infections. In addition to being potentially fatal, COVID-19 can result in serious illness and hospitalization. While most who recover report no lasting effects, some suffer from “long COVID,” with persistent symptoms. Case rates, hospitalization rates, and death rates vary by age, but no age group is unaffected by the risk of serious illness or death from COVID-19.
[19] According to Dr. Lourenco’s evidence, COVID-19 is primarily spread through respiratory droplets and aerosols. It can be transmitted to others by those who show little or no symptoms and might therefore be unaware that they are infected.
[20] Dr. Lourenco’s affidavit describes in detail the process for approval of vaccines in Canada, and in particular the process and review leading to approval of COVID-19 vaccines in Canada. To date, four vaccines have been approved. Two of these are messenger ribonucleic acid (mRNA) vaccines, while two are viral vector vaccines. Most of the detailed scientific evidence in Dr. Lourenco’s affidavit regarding the basis for approval and the safety and effectiveness record of COVID-19 vaccines need not be set out for purposes of this motion. It is sufficient to say that the evidence demonstrates that before being approved, COVID-19 vaccines undergo a thorough scientific review of their safety and effectiveness by Health Canada officials, independent of involvement of elected officials; that COVID-19 vaccines reduce both the risk and the impacts of infection; and that vaccination is a key component of Canada’s efforts to combat COVID-19.
[21] Of particular relevance is Dr. Lourenco’s categorical statement that individuals who are fully vaccinated with either an mRNA vaccine or a viral vector vaccine are less likely to spread COVID-19 to others. While Mr. Lavergne-Poitras does not formally admit this is so, he does not contest it and does not present any contrary evidence. Also important is the recognition that those who are fully vaccinated against COVID-19 can still contract COVID-19. While this represents a small percentage of the vaccinated population, it means that federal public servants who are vaccinated are still at risk of contracting COVID-19, and are at a greater risk of exposure and infection from those who are unvaccinated than from those who are vaccinated.
[22] Dr. Lourenco’s affidavit and Mr. Lavergne-Poitras’ affidavit both provide information regarding risks associated with COVID-19 vaccines. Each provides the same data with respect to the adverse effects reported after vaccination. As of October 29, 2021, there had been over 58 million vaccine doses administered in Canada. A total of 22,231 adverse events were reported, of which 5,653 were serious. Serious adverse event reports are therefore associated with about 1 in 10,000 doses although, as with the impacts of COVID-19, the adverse event report rates vary with age groups. Dr. Lourenco underscores that these reports pertain to adverse events following immunization but do not necessarily entail a link to the vaccine.
B. The supplier vaccination policy
[23] On October 6, 2021, Canada implemented a “Policy on COVID-19 Vaccination for the Core Public Administration including the Royal Canadian Mounted Police.” Under this public service vaccination policy, unless granted an accommodation based on a certified medical contraindication, religion, or another prohibited ground of discrimination, covered federal government employees who are unwilling to be fully vaccinated or to disclose their vaccination status will be placed on leave without pay on November 15, 2021.
[24] This motion does not address the public service vaccination policy and makes no determinations whatsoever with respect to it.
[25] Also on October 6, 2021, Public Services and Procurement Canada (PSPC) announced on the “Buyandsell.gc.ca” website (the place where the Procurement Branch of PSPC largely manages its tender processes) that in alignment with the public service vaccination policy, the supplier vaccination policy would take effect on November 15, 2021.
[26] For completeness, I have included the full text of the English and French versions of the supplier vaccination policy as Annex A to these reasons. I reproduce here several relevant passages of the English version:
As of November 15, 2021, all supplier personnel must be fully vaccinated to access federal government workplaces. Suppliers will be required to provide a certification to their contracting authority.
[…]
Vaccination requirement for supplier personnel
As of November 15, 2021, supplier personnel who access federal workplaces must be fully vaccinated. Federal government workplaces include all places of work under the responsibility of the Government of Canada where federal government employees are present.
[…]
Existing contracts and contractors
Contractor personnel who access Government of Canada workplaces to perform work pursuant to existing contracts are subject to the vaccine requirement.
Meeting the vaccination requirement
You are considered fully vaccinated if you have received:
• the full series of an accepted COVID-19 vaccine or a combination of accepted vaccines including:
○ 2 doses of any combination of Moderna Spikevax, Pfizer-BioNTech Comirnaty or AstraZeneca Vaxzevria (including CoviShield)
○ 1 dose of Janssen (Johnson & Johnson)
[…]
Certification Process
Suppliers must submit a certification form by October 29, 2021, certifying that their personnel who access Government of Canada workplaces will be fully vaccinated as of November 15, 2021. Contractors who do not submit the certification may be subject to further measures, up to and including termination.
[…]
Future contracts
As of October 15, 2021, bidders for contracts that will require supplier personnel to access federal government workplaces must submit a certification proving they meet the vaccine requirement as a condition of the bid. Bids that do not include the certification will not be considered. The certification form will be included with implicated Requests for Proposals.
[Bold in original; I have italicized headings for clarity.]
[27] The certification referred to in the policy is provided in a separate document. It requires the supplier to certify that all personnel that the business will provide under the applicable contract who access federal government workplaces where they may be in contact with public servants (a) will be fully vaccinated against COVID-19, or (b) for personnel unable to be vaccinated for medical or religious reasons, or other prohibited grounds of discrimination, will be subject to approved accommodation and mitigation measures.
C. The applicant and his employment
[28] Mr. Lavergne-Poitras has chosen not to be vaccinated against COVID-19. He describes in his affidavit his concerns about the risks and side effects associated with the COVID-19 vaccines that have been approved by Health Canada, including both mRNA vaccines and traditional viral vector vaccines. His concerns about complications affecting the heart are exacerbated by the fact that his father died young of a heart attack.
[29] Mr. Lavergne-Poitras has been employed by PMG as a testing technologist since July 2019. His work involves testing on existing and new car-safety systems such as driver assistance systems. He implements test and research protocols, installs and calibrates equipment, performs tests, and collects and analyzes test data. It is work that he thoroughly enjoys and is the most satisfying employment he has been involved in.
[30] Mr. Lavergne-Poitras works at a facility in Blainville, Quebec that is owned by Canada. The Blainville facility has exterior road test tracks, one administration building and two laboratory buildings. PMG provides services to Canada at the Blainville facility pursuant to a contract with Transport Canada. There are 89 people working at the Blainville facility, five of whom are federal government employees. According to Mr. Lavergne-Poitras, of those five, three work in different buildings from him and have little or no interaction with him, while the other two work from home. Mr. Lavergne-Poitras’ testing is mostly carried out on the exterior road tracks, and he spends “the major part” of his work time by himself without needing to be in the presence of other individuals.
[31] PMG has implemented sanitary safeguards at the Blainville facility, including hand washing, workstation disinfection, social distancing, and the wearing of masks when working in proximity to others. Mr. Lavergne-Poitras and others at the Blainville facility observe these protocols.
[32] As a supplier to the federal government, PMG is subject to the supplier vaccination policy. In an affidavit filed by the Attorney General, Ricardo Seoane, a senior official with PSPC, confirmed that PMG has submitted a certification in accordance with the supplier vaccination policy.
[33] In addition, PMG is in the final year of its current contract with Transport Canada. Transport Canada has issued tender documents with respect to a new contract, on which PMG expects to be the sole bidder since it is the only company in Canada in the automotive safety systems testing field. In October 2021, Transport Canada issued an amendment to the tender documents to require bidders to provide with their bid a certification in accordance with the supplier vaccination policy.
[34] After the supplier vaccination policy was issued, the President of PMG told Mr. Lavergne-Poitras that PMG would either indefinitely lay off or terminate the employment of any unvaccinated individuals including Mr. Lavergne-Poitras as of November 15, 2021. At the time, there were five such employees. Mr. Lavergne-Poitras understands that three agreed to be vaccinated while he and another have not.
[35] Mr. Lavergne-Poitras describes his concerns and the choice he is faced with as follows:
My knowledge of and concerns with these potential side effects and complications results in severe anxiety over being vaccinated for COVID-19, to the point that if forced to choose between being vaccinated to remain employed with PMG, or losing my job and avoiding vaccination, I would likely choose the latter;
[36] It is worth noting at this point that Mr. Lavergne-Poitras describes in some detail in his affidavit the reason for his concerns, including the nature of mRNA vaccines, the approval process, the existence of ongoing clinical trials and the absence of long-term safety data, and documented side effects. He goes so far as to cite the Nuremberg Code regarding informed consent for medical experiments on human beings. As the Attorney General concedes, this case is not about the reasonableness or advisability of Mr. Lavergne-Poitras’ concerns. What matters is that Mr. Lavergne-Poitras has chosen not to be vaccinated. No COVID-19 vaccine mandate has been imposed in Canada at the federal or provincial level. The Attorney General agrees that Mr. Lavergne-Poitras has the right to decide not be vaccinated and that neither Canada or the Court should second guess that decision. This motion is about the consequences of that decision caused by the supplier vaccination policy and whether the imposition of those consequences should be temporarily suspended until Mr. Lavergne-Poitras can challenge their lawfulness.
[37] With this summary of the issues and the stakes for Mr. Lavergne-Poitras, I turn to the arguments put forward for the requested injunction.
IV. Analysis
A. Serious Issue
[38] The first branch of the test for an interlocutory injunction recognizes that an injunction motion is not the time to fully decide the merits of the underlying proceeding. Rather, an applicant need only show that the issues raised are serious ones requiring determination at the ultimate hearing. This “serious question to be tried” threshold is a low one, requiring only that the applicant’s case be “neither frivolous nor vexatious”: RJR-MacDonald at pp 335, 337; R v Canadian Broadcasting Corp, 2018 SCC 5 at para 12. To assess whether there is such a serious issue or question, the Court must make a “preliminary assessment of the merits of the case” based on the evidence filed on the motion: RJR-MacDonald at p 337.
[39] In this case, the underlying proceeding is Mr. Lavergne-Poitras’ application for declaratory and injunctive relief in respect of the supplier vaccination policy. In his application, Mr. Lavergne-Poitras makes three main allegations. He claims the supplier vaccination policy is ultra vires because it is not supported by any enabling power or legislation. He claims it violates his rights under section 7 of the Charter. And he claims it violates his right to security of the person under paragraph 1(a) of the Canadian Bill of Rights, SC 1960, c 44. Mr. Lavergne-Poitras does not raise the Bill of Rights argument on this motion, focusing solely on the ultra vires and Charter arguments.
(1) There is no serious issue to be determined regarding the authority to issue the supplier vaccination policy
[40] In his memorandum of fact and law, Mr. Lavergne-Poitras states that the supplier vaccination policy “does not appear to be supported by legislation” and that counsel has not identified any statutory provision giving the Government of Canada the power to “mandate vaccination of individuals.” He argues that implementing the supplier vaccination policy in the absence of such a statutory provision is contrary to fundamental rule of law principles.
[41] The supplier vaccination policy does not mandate vaccination of individuals. It imposes contractual sanctions on suppliers who do not certify that their personnel present at federal government workplaces where there are public servants are fully vaccinated. While it indirectly imposes a consequence on suppliers’ employees who choose not to be vaccinated, it does not mandate vaccination. This is a material distinction. The policy must be assessed on its terms and in the manner in which it encourages and promotes vaccination. Among other things, this makes Mr. Lavergne-Poitras’ argument that the Province of Quebec has not exercised its authority under section 123 of the Public Health Act, CQLR, c S-2.2 to “order compulsory vaccination of the entire population or any part of it against […] any other contagious disease seriously threatening the health of the population” irrelevant.
[42] As authority for the supplier vaccination policy, the Attorney General points to PSPC’s “inherent authority” to set policy for its procurement initiatives. In support of this assertion, the Attorney General initially pointed only to a statement from Mr. Seoane that PSPC has that inherent authority. However, the Attorney General provided a more thorough explanation at the hearing, relying on the authority of Canada to enter into contracts, and the resulting power as a contracting party to define the terms of those contracts.
[43] As the Attorney General notes, the Minister of Public Services and Procurement is given the power to enter into contracts, and fix the terms and conditions of them, by sections 20 and 21 of the Department of Public Works and Government Services Act, SC 1996, c 16. I agree with the Attorney General that as a contracting party, no additional statutory authority is necessary for PSPC to adopt a policy that results in terms applicable to the contracts it enters into. This is not to say that such a policy may not be subject to challenge on other grounds. It is simply to say that a contracting policy need not be based on a separate legislative provision setting out the contents of the policy.
[44] At the hearing of this motion, Mr. Lavergne-Poitras conceded that PSPC could require a certification as to vaccination status as a term of a future contract, such as that required in the tender documents PMG will apparently be bidding on in the near future. However, he contended that Canada could not unilaterally impose conditions in respect of an existing contract. He underscored the importance of the binding nature of a contract and the fact that one party to a contract has no general right to unilaterally modify its terms.
[45] Canada responded with reference to certain provisions in the Standard Acquisition Clauses and Conditions and to provisions in its agreement with PMG. I need not decide these matters, as I agree with Canada that to the extent there is any argument about whether Canada can require PMG to provide a certification with respect to its current agreement, this is a matter of contract between PMG and Canada. PMG, whose counsel was present at the hearing but who filed no evidence and made no submissions, provided the certification and has apparently not challenged the applicability of the contractual provision to its current contract. Mr. Lavergne-Poitras is not privy to the contract. As a stranger to the contract between PMG and Canada, Mr. Lavergne-Poitras cannot argue that contract law prevents Canada from unilaterally imposing a new term on the contract.
[46] I conclude Mr. Lavergne-Poitras has raised no serious issue with respect to the statutory or contractual authority for PSPC to issue the supplier vaccination policy.
(2) There is no serious issue that the supplier vaccination policy violates Mr. Lavergne-Poitras’ rights under section 7 of the Charter
[47] Mr. Lavergne-Poitras’ decision not to receive a COVID-19 vaccine is not based on religious tenets or a particular health condition. He does not assert a violation of his right to equality under section 15 of the Charter. Rather, he argues the supplier vaccination policy violates his rights under section 7 of the Charter, which reads as follows:
Life, liberty and security of person
Vie, liberté et sécurité
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7 Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
[48] The Supreme Court of Canada has recently reiterated that to show a violation of section 7, two elements must be established. First, the impugned law or government action must deprive a claimant of the right to life, liberty or security of the person. In other words, the applicant’s life, liberty or security of the person interest must be “engaged.” Second, the deprivation in question must not accord with the principles of fundamental justice: R v CP, 2021 SCC 19 at para 125 citing Carter v Canada (Attorney General), 2015 SCC 5 at para 55.
[49] For the reasons below, I conclude Mr. Lavergne-Poitras has established a serious issue to be determined with respect to the first element of this analysis, namely that his liberty or security of the person interest is engaged. However, I conclude he has not raised a serious issue to be determined with respect to the alleged violation of the principles of fundamental justice.
[50] Before turning to these questions, I will address the Attorney General’s argument that Mr. Lavergne-Poitras does not have standing to raise his Charter arguments in the context of the supplier vaccination policy.
(a) Standing
[51] For reasons similar to those referred to above, the Attorney General argues Mr. Lavergne-Poitras lacks standing to challenge the supplier vaccination policy on Charter grounds since it is a matter of contract between Canada and its suppliers. I conclude that there is a sufficiently serious issue to be determined with respect to standing that this motion should not be dismissed on this basis.
[52] Although the supplier vaccination policy is implemented through contractual provisions and potential contractual sanctions, it is clear the policy can have impacts on non-contracting parties. While those impacts may not give standing to challenge the policy on contractual grounds, it is considerably less clear that they also preclude a Charter challenge.
[53] The Charter requires not just legislation but all government action to respect the protected rights of Canadians. If those whose Charter rights were impacted by a government policy could not challenge the policy on the basis that it was only implemented via contractual terms with third parties, the result could be a government action that violates a Charter right without there being a meaningful remedy. This is contrary to the general principle that there should be a full, effective, and meaningful remedy for Charter violations: Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 25.
[54] On the Attorney General’s argument, the Government of Canada could implement a policy that requires government suppliers to only hire individuals of, for example, a particular race or ethnicity. Despite the clear discriminatory impacts of such a policy on individual employees, the Attorney General argues they could not seek vindication of their right to equality under section 15 of the Charter owing to principles of privity of contract. Rather, the Attorney General argues it would be for the employer alone to challenge the policy based on their employees’ Charter rights. The employees’ remedy, argues the Attorney General, would have to be against their employer, perhaps under applicable human rights legislation, for complying with the government policy. Similarly, the Attorney General argues that in this case, only PMG can challenge the supplier vaccination policy based on Mr. Lavergne-Poitras’ right to liberty and security of the person under section 7.
[55] I need not decide these arguments, although I question them. The Attorney General did not point to jurisprudence establishing clearly that an individual whose Charter rights are violated by a government contracting policy is precluded by principles of privity from seeking a remedy for that violation. I conclude that there is a serious issue to be determined as to Mr. Lavergne-Poitras’ standing to seek an injunctive remedy in respect of the supplier vaccination policy based on an asserted breach of his rights under section 7 of the Charter.
(b) Deprivation of liberty or security of the person
[56] In Carter, the Supreme Court of Canada summarized the nature of the rights to liberty and security of the person in the following language:
Underlying both of these rights is a concern for the protection of individual autonomy and dignity. Liberty protects “the right to make fundamental personal choices free from state interference.” Security of the person encompasses “a notion of personal autonomy involving . . . control over one’s bodily integrity free from state interference” and it is engaged by state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering.
[Citations omitted; Carter at para 64.]
[57] Mr. Lavergne-Poitras claims the supplier vaccination policy effectively requires vaccination as a condition of remaining employed by PMG. He argues that mandating medical treatment against a person’s will violates the right to security of the person, while mandating vaccination as a condition of remaining employed in a chosen career infringes the person’s right to liberty.
[58] The Attorney General concedes that forced medical treatment, including forced vaccination, would engage liberty and security of the person interests under section 7 of the Charter. However, the Attorney General argues that the supplier vaccination policy does not mandate vaccination, and that section 7 does not protect purely economic interests, including an individual’s right to pursue their chosen profession, citing Siemens v Manitoba (Attorney General), 2003 SCC 3 at paras 45–46 and Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 at paras 35–45.
[59] Mr. Lavergne-Poitras refers to the decision of the Supreme Court of Canada in Godbout v Longueuil (City), [1997] 3 SCR 844. There, the Court struck down a municipal resolution requiring all new permanent employees to reside within the city boundaries. All members of the Court concluded that the resolution infringed the right to respect for one’s private life under section 5 of the Quebec Charter of Human Rights and Freedoms, CQLR, c C-12. Three of the nine judges also concluded the resolution was a violation of Ms. Godbout’s rights under section 7 of the Charter.
[60] These judges found the liberty interest in section 7 encompassed the right to choose where to establish one’s home: Godbout at para 66. Notably, this interest was considered compromised not by a direct legal requirement that Ms. Godbout live in the city, but by a provision that required her to live in the city if she wished to remain employed by the city: Godbout at paras 58–61. Thus, these members of the Court considered the liberty interest to be engaged not only by a direct mandate, but by the imposition of a requirement as a term of employment. This was so even though Ms. Godbout signed the residence declaration required by the city: Godbout at para 70. Even though Ms. Godbout could choose not to be employed by the city, or could choose to live in the city, her liberty interests were engaged by the city’s requirement that she live in the city to be employed by the city.
[61] As noted, the conclusions in Godbout regarding section 7 were only adopted by three judges: see Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 at para 93. However, the decision provides some authority for the proposition that engaging a liberty or security of the person interest as a condition of employment may constitute a deprivation of that right for the purposes of the section 7 analysis. The Attorney General’s contrary arguments based on Siemens and Tanase may ultimately be successful or they may not. For present purposes, I conclude Mr. Lavergne-Poitras’ argument that his liberty and security of the person interests are engaged by a policy that effectively requires him to be vaccinated in order to be employed by PMG is not frivolous or vexatious. It meets the threshold of a serious issue to be tried.
(c) Principles of fundamental justice
[62] Not all deprivations of liberty or security of the person are contrary to section 7 of the Charter. Section 7 only protects against such deprivations that violate the principles of fundamental justice: Carter at para 71. For a principle to constitute a principle of fundamental justice, it must be a legal principle, there must be significant societal consensus that it is fundamental to the way in which the legal system ought to operate, and it must be sufficiently precise to yield a management standard for analysis: Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7 at para 87 citing R v Malmo-Levine, 2003 SCC 74 at para 113.
[63] The Supreme Court in Carter refers to three principles that have emerged as central in section 7 jurisprudence: “laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object” [emphasis added]: Carter at para 72. Mr. Lavergne-Poitras contends that the supplier vaccine policy violates each of these three principles, namely arbitrariness, overbreadth, and gross disproportionality.
[64] Each of these involves comparison with the object of the law that is challenged: Carter at para 73. It is therefore appropriate to begin by identifying the object of the impugned government action.
[65] Mr. Lavergne-Poitras suggests the purpose of the supplier vaccination policy is “arguably to protect at-risk individuals from the spread of COVID-19.” He then focuses his arguments on “at-risk” individuals. However, neither the language of the policy nor the context in which it was issued suggests it is targeted at protecting “at-risk” individuals in particular. Indeed, as the evidence of Dr. Lourenco makes clear, all individuals may be considered “at risk” of COVID-19 infection to a greater or lesser degree.
[66] Rather, the purpose of the supplier vaccination policy is described in PSPC’s October 6, 2021 announcement of the policy, namely to “ensure that federal workplaces are kept safe and that employees who work in them are protected.” This purpose of protecting the health and safety of federal government employees at federal workplaces is clear from the scope of the policy. It applies only to federal workplaces “where federal government employees are present.” It does not apply to contracts for the provision of goods. Nor does it apply where services are solely performed in non-federal government workplaces. The certification required of suppliers is that personnel will be vaccinated if they access federal workplaces where they may be in contact with public servants. The focus throughout is on the health and safety of federal government employees, and in particular on reducing the risk of the SARS-CoV-2 virus and its variants being transmitted to those employees by the employees of suppliers to the federal government who are in contact with them.
[67] It is against this employee health protection goal that Mr. Lavergne-Poitras’ allegations of arbitrariness, overbreadth, and gross disproportionality must be assessed.
(i) Arbitrariness
[68] A law or government action will be contrary to the principles of fundamental justice as being arbitrary where there is “no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person”: Carter at para 83. To avoid being arbitrary, the effect on the individual must bear “some relation” to the law’s purpose as opposed to having no connection to the objective: Canada (Attorney Gen