Executive Summary: Key Legal and Evidentiary Issues

• Whether the Federal Public Sector Labour Relations and Employment Board had jurisdiction under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act over the applicants’ grievances.

• Characterization of the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police as an administrative measure rather than a disguised disciplinary measure.

• Assessment of whether placing the applicants on leave without pay for failing to comply with the Policy constituted disguised discipline.

• Application of the reasonableness standard of review from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to the Board’s decision.

• Consideration of the applicants’ arguments under section 7 of the Canadian Charter of Rights and Freedoms regarding the impact of the Policy and unpaid leave on security of the person.

• Treatment of evidence relating to vaccination rates, accommodation measures, and working-from-home arrangements, and the court’s refusal to reweigh that evidence on judicial review.

Facts of the case
The applicants, Karine Lavoie and Slim Rehibi, sought judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board dated March 28, 2024 (2024 FPSLREB 47). The Board’s decision addressed grievances the applicants had referred to adjudication under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2. Under that provision, grievances must relate to “a disciplinary action resulting in termination, demotion, suspension or financial penalty”. The Board dismissed the applicants’ grievances challenging the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police. The Board found that, although the Policy had adverse consequences for the applicants, it was essentially an administrative measure intended, among other things, to protect the health and safety of federal public service employees and was not a disguised disciplinary measure intended to punish employees who refused to be vaccinated. The Board concluded that the applicants had not demonstrated that their grievances concerned a disguised disciplinary measure that could be referred to adjudication under paragraph 209(1)(b).

Issues before the court
On judicial review, the applicants challenged the Board’s conclusion that it lacked jurisdiction over their grievances. The parties agreed that the applicable standard of review was reasonableness as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and that the applicants bore the onus of demonstrating that the Board’s decision was unreasonable. The applicants argued that the Board failed to give meaningful consideration to protections in the Canadian Charter of Rights and Freedoms, particularly the right to security of the person under section 7, and to the impact of the Policy on that right. They also submitted that the Board did not properly take into account evidence relating to vaccination rates, accommodation measures, and working-from-home arrangements. During the hearing, the applicants raised several additional issues that had not been before the Board or included in their memorandum of fact and law.

Reasoning of the court
The court reviewed the record, the parties’ written and oral submissions, and the applicable law, and concluded that the Board’s decision was not unreasonable. The court found that the decision was based on an internally coherent and rational chain of analysis and was justified in relation to the facts and law that constrained the Board. The court held that the Board correctly identified the issue it had to decide, namely whether placing the applicants on leave without pay constituted a disguised disciplinary measure, and that it reviewed the parties’ submissions, considered their extensive evidence, and provided detailed reasons. The court determined that the Board considered the constraints imposed by the legislative framework, including paragraph 209(1)(b) of the Act and relevant case law. On the Charter issue, the court was not persuaded that the Board failed to give meaningful consideration to the applicants’ arguments. The court held that the Board meaningfully considered the submissions on the Charter and thoroughly addressed the issues raised, but ultimately concluded that the applicants were unable to demonstrate that the effect of placing them on unpaid leave for failing to comply with the Policy was disproportionate to the administrative justification provided by the employer. Regarding the evidentiary complaints, the court held that the Board considered the elements identified by the applicants, including vaccination rates, accommodation measures, and working-from-home arrangements. The court characterized the applicants’ position as disagreement with how the Board chose to characterize the evidence. The court emphasized that, on judicial review, it must refrain from reweighing and reassessing the evidence considered by the decision maker and, absent exceptional circumstances, will not interfere with the Board’s factual findings. The court summarized that, given the facts and the evidence presented to the Board, it was open to the Board to conclude that the grievances did not raise a question of disguised discipline. The court also declined to address several issues that the applicants raised during the hearing that were not before the Board or in their memorandum of fact and law.

Outcome and costs
The application for judicial review brought by Karine Lavoie and Slim Rehibi was dismissed. The court confirmed the Board’s conclusion that it did not have jurisdiction under paragraph 209(1)(b) of the Federal Public Sector Labour Relations Act over the applicants’ grievances and declined to interfere with the Board’s findings. The court ordered that costs be awarded in favour of the respondent, the Attorney General of Canada, in the all-inclusive amount of $1,500. The hearing took place in Ottawa, Ontario, on December 17, 2025, and judgment was delivered at Ottawa, Ontario, on December 30, 2025.