Executive Summary: Key Legal and Evidentiary Issues

• CAF COVID-19 vaccination directives challenged under section 7 of the Canadian Charter of Rights and Freedoms.

• Applicant claimed coercion into vaccination, alleging violation of informed consent and constitutional rights.

• Judicial review scope restricted to issues raised in the CAF grievance process.

• Court excluded affidavit evidence from Applicant’s counsel’s law firm employee for violating evidentiary rules.

• New issues and evidence introduced on judicial review were deemed inadmissible.

• Application dismissed as moot under the Borowski test, with costs awarded to the Respondent.

Facts and outcome of the case

Background of the dispute
Lieutenant-Commander Serge Tetreault, a serving member of the Canadian Armed Forces (CAF), challenged the CAF’s COVID-19 vaccination directives issued in 2021. The first directive required all CAF members to be vaccinated, with potential remedial measures for non-compliance. Subsequent directives refined accommodations and administrative actions, and eventually a third directive suspended the earlier orders, limiting vaccination requirements to specific operational roles. Tetreault received the vaccine after Directive #1 was issued but claimed it was against his will due to fear of losing his job and income.

Grievance process
Tetreault filed a grievance in late 2021, seeking a review of the constitutionality and legality of the directives, their rescission, an apology, and redress for the irreversible vaccination. The grievance was reviewed by the Military Grievances External Review Committee (MGERC), which found a section 7 Charter breach. The Chief of the Defence Staff (CDS), as final authority, disagreed with the MGERC, finding no Charter violation and refusing redress.

Judicial review application
Tetreault sought judicial review of the CDS decision, arguing breaches of section 7, lack of jurisdiction, bias, discrimination, and lack of informed consent. The court found that many of these arguments were new and not raised in the grievance process or in the original Notice of Application, making them inadmissible. It also excluded affidavit evidence from an employee of Tetreault’s law firm due to hearsay and procedural violations under the Federal Courts Rules.

Court’s analysis
The Federal Court focused on whether the case was moot. Applying the Borowski test, it concluded there was no live controversy because Directive #1 was no longer in effect, Tetreault had complied, and he faced no service consequences. While Directive #3 remained in place, there was no evidence it applied to him. The court declined to exercise discretion to hear the matter, finding no practical utility, public interest necessity, or basis to render a decision on a hypothetical scenario.

Outcome and costs
The application for judicial review was dismissed as moot. The court awarded the Respondent, the Attorney General of Canada, $3,780 in costs. No damages were granted. The style of cause was corrected to reflect the proper Respondent’s name.