Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Federal Court and Federal Court of Appeal over the respondents’ claims was barred by sections 208 and 236 of the Federal Public Sector Labour Relations Act.

• The statement of claim alleged breaches of section 2(d) of the Charter and the tort of misfeasance in public office related to the Treasury Board’s Policy on COVID-19 Vaccination.

• The Federal Court struck the tort claim but allowed the Charter claim to proceed; the Federal Court of Appeal struck the entire claim.

• The grievance process under section 208 of the Federal Public Sector Labour Relations Act was found to be the exclusive remedy for the respondents.

• No exceptional circumstances were pleaded that would allow the courts to assume jurisdiction.

• Costs were awarded to His Majesty the King, with no specific amount stated.

Facts of the case

The case involves an appeal by His Majesty the King from a judgment of the Federal Court in a proposed class action brought by Stacey Helena Payne, John Harvey, and Lucas Diaz Molaro. The respondents challenged the Treasury Board’s Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police. Under this policy, all employees of the core public administration, as defined in subsection 11(1) of the Financial Administration Act, were required to be vaccinated against COVID-19, subject to exceptions. Employees who refused vaccination or to disclose their vaccination status were placed on administrative leave without pay. The statement of claim asserted causes of action under section 2(d) of the Charter and for the tort of misfeasance in public office.

Policy terms and clauses at issue

The policy at issue was the Treasury Board’s Policy on COVID-19 Vaccination, which affected the respondents’ terms and conditions of employment. The legal challenge centered on whether the courts had jurisdiction to hear claims arising from the policy, or whether such claims must be pursued through the grievance process established by the Federal Public Sector Labour Relations Act. Specifically, section 208 allows grievances concerning occurrences or matters affecting employment, and section 236 removes court jurisdiction over disputes that can be grieved under section 208.

Procedural history and arguments

The Federal Court struck the portion of the statement of claim related to the tort of misfeasance in public office, but allowed the Charter claim to proceed and permitted the respondents to amend their statement of claim. On appeal, His Majesty the King argued that the entire statement of claim should be struck for lack of jurisdiction. The respondents argued that their claim challenged the “process” of imposing the policy and sought leave to amend the claim to add unnamed individuals who might not have grievance rights.

Ruling and outcome

The Federal Court of Appeal allowed the appeal, set aside the judgment of the Federal Court, and struck the statement of claim in its entirety for want of jurisdiction without leave to amend. The Court held that the Federal Court and the Federal Court of Appeal have no jurisdiction over the respondents’ claims due to the clear bar in sections 208 and 236 of the Federal Public Sector Labour Relations Act. The Court found that all the named respondents could launch a grievance and that no exceptional circumstances were pleaded to bypass the statutory bar. The Court also found that no amendments could cure the lack of jurisdiction. Costs were awarded to His Majesty the King both in the Federal Court and on appeal, but no specific amount was stated in the judgment.