Executive Summary: Key Legal and Evidentiary Issues

• Arbitrator allegedly applied a "correctness" standard to scientific conclusions rather than assessing whether the employer's policy was reasonable

• Conflicting public health authority opinions on vaccine effectiveness against Omicron infection were not properly reconciled

• Provincial Health Officer's September 2022 Order supporting vaccination was dismissed as an "outlier" without adequate justification

• Finding that 9% average vaccine effectiveness was "statistically insignificant" was unexplained in the arbitrator's reasoning

• Application of the precautionary principle was inconsistently applied between early 2022 and later periods

• Internal incoherence in the arbitrator's reasoning undermined confidence in the balancing of interests analysis

Background and parties involved

Purolator Canada Inc., a federally regulated integrated freight, package and logistics solutions provider, implemented a mandatory COVID-19 vaccination policy called the COVID-19 Safer Workplace Policy (SWP) on September 15, 2021. The policy required every Purolator employee and owner/operator to attest to being fully vaccinated against COVID-19 by January 10, 2022, with any employee who did not so attest placed on a leave of absence. The SWP was in place between January 1, 2022, and May 1, 2023. The Canada Council of Teamsters holds bargaining rights for the employees and owner/operators of Purolator, including through its constituent Teamsters Local Union No. 31 ("Local 31"). Between December 23, 2021, and January 31, 2022, Local 31 filed several individual grievances and one group policy grievance challenging the reasonableness of the SWP in British Columbia.

The arbitration proceedings and initial findings

Arbitrator Nicholas Glass presided over the matter, with evidence led over 23 days between September 2022 and September 2023. The arbitrator had before him a substantial body of evidence, including evidence about public health pronouncements and policies, as well as expert evidence from Shirin Kalyan, PhD, Local 31's expert, who is a "translational immunologist," and Dr. Gabriel Rebick, MD, Purolator's expert, who is a physician with specializations in infectious diseases and internal medicine. The arbitrator applied the KVP/Irving balancing of interests test for assessing unilaterally imposed workplace policies, which requires that an employer's unilateral rule or policy that has not been negotiated with its union must "not be unreasonable." In this case, the arbitrator weighed the affected employees' rights of personal autonomy and bodily integrity, and economic loss of livelihood, against the employer's reasons for implementing and maintaining the vaccination mandate.

The arbitrator's conclusions on vaccine effectiveness

The arbitrator found that the SWP was reasonable up until June 30, 2022, but unreasonable thereafter. His central finding was that by the spring of 2022, a two-dose vaccination series was discovered to be effectively useless for protection against infection. He determined that the waning effect for two-dose vaccination was dramatic, dropping to an average effectiveness percentage across the main vaccines of 9% after 25 weeks, ranging from 17% to zero depending on the vaccine. Based on this conclusion, the arbitrator held that by the late spring of 2022 there was no longer any scientific uncertainty about the fact that two-dose vaccination after 25 weeks provided statistically insignificant protection against infection, and that the precautionary principle no longer had any application with respect to protection against infection.

Treatment of the Provincial Health Officer's guidance

A critical issue arose regarding the Order of the Provincial Health Officer for British Columbia, Dr. Bonnie Henry, dated September 12, 2022. The employer claimed it relied on this public health authority guidance in continuing to maintain the SWP. The Order stated that unvaccinated people are more prone to carry SARS-CoV-2 compared with vaccinated people, and that an unvaccinated person is more likely to become infected than a vaccinated person and is more likely to transmit SARS-CoV-2 than a vaccinated person. The arbitrator concluded that this statement was an outlier, wholly inconsistent with the preponderance of material presented, and that Dr. Kalyan specifically refuted it. Accordingly, the arbitrator found that this isolated and contrarian message from the PHO did not constitute an adequate plank on which to salvage the employer's assertion that the SWP remained reasonable.

The Court of Appeal's analysis

The British Columbia Court of Appeal, comprising The Honourable Mr. Justice Harris, The Honourable Madam Justice DeWitt-Van Oosten, and The Honourable Justice Edelmann, allowed Purolator's appeal. Writing for the unanimous court, Justice Harris found the Award unreasonable in the administrative law sense as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The Court identified that the arbitrator held Purolator to a standard of correctness in how it interpreted and applied competing public health and scientific evidence amidst the pandemic.

The Court emphasized that in a pandemic of dramatic proportions, causing widespread illness and death, characterized by uncertainty about the behavior of different variants, modes of transmission, and effective means of protection, the relevant question is what steps are reasonable, not what steps can be objectively demonstrated to be correct. The Court noted an internal incoherence in the arbitrator's reasoning: on the one hand, the arbitrator accepted that uncertainty may ground an application of the precautionary principle; on the other, he did not apply that reasoning in the face of evidence from the PHO demonstrating continuing uncertainty as late as September 2022, and into 2023. Rather, he employed a different approach by discounting the materiality of advice from the PHO and marginalizing it because he concluded it was wrong and an outlier.

Ruling and outcome

The Court of Appeal concluded that the Award was unreasonable on administrative law grounds, set aside the Award, and remitted the grievance to a new arbitrator. The Court stated that given the nature of the deficiencies embedded in the Award, this is a suitable case for fresh eyes. The Court considered it unnecessary to address certain other arguments advanced by Purolator, including whether the arbitrator departed unreasonably from the arbitral common law by considering employee interests in privacy and autonomy akin to constitutionally protected interests, and whether the arbitrator unreasonably neglected Purolator's statutory obligation to provide a healthy and safe workplace, leaving these additional issues to be dealt with in the new arbitration. No specific monetary amount was determined, as the matter requires re-arbitration. Purolator was the successful party on appeal.