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Judge dismisses anti-vaxxers' court action

Concerns of nine former City of Quesnel employees who lost their jobs "fall squarely within the exclusive jurisdiction of an arbitration board."
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Rendering 3d vaccine medicine bottle flu vaccine anti-vaccination and covid-19

A B.C. Supreme Court Justice has dismissed a civil action brought against the City of Quesnel and the provincial government by a group of former municipal employees who lost their jobs for refusing to get vaccinated against COVID-19.

In a decision issued Nov. 17, Justice Nathan Smith agreed with the defendants that a hearing before the Labour Relations Board is the proper venue for dealing with the issue, noting that the employees were all members of either of two locals of the Canadian Union of Public Employees.

"I find that this dispute in its essential character arises from the plaintiffs' loss of employment and raises issues that, as a matter of law, fall squarely within the exclusive jurisdiction of an arbitration board under the collective agreements and the (Labour Relations) Code," Smith wrote.

"Because the plaintiffs ask the court to adjudicate a matter over which it has no jurisdiction, their claim cannot be said to have any prospect of success."

In June, counsel from a law office based in Cold Lake, Alta. filed a notice of civil claim on behalf of nine employees who were fired in refusing to submit to an "unwanted medical procedure." Each of them was seeking up to $2 million in damages, half for alleged violation of their rights and half for damages for alleged mental distress.

In part, they argued that the issue at hand falls outside the collective agreement with the municipality because it "involves the deprivations of rights unconnected to employment" and that there are public policy reasons for taking the issue to court. They also worried the grievance process being pursued through their union would not treat them fairly given "the animosity that has been demonstrated to unvaccinated persons in Canada."

But Smith found they failed to back up that position with material facts and that the arbitration process under the Labour Relations Code includes third-party adjudication and safeguards. An arbitration hearing had been scheduled for late October, according to a submission to the court.

A spokesperson for the Labour Relations Board said she suspects the dispute was referred to arbitration under the terms of the parties’ collective agreement.

"Those disputes are resolved by private arbitrators, appointed by consent of the parties. While the Board has a small part to play in arbitration, it was not involved in this one," the spokesperson said.

The provincial government was also named a defendant and, in an amended notice of civil claim filed in September, the plaintiffs argued the provincial government pressured B.C. businesses to implement the vaccine mandate, and that the municipality "took this erroneous direction from the Province and implemented the illegal, unconstitutional and damaging Mandate on its employees."

However, Smith found the allegations are "entirely conclusory, with no factual allegation of any specific conduct by the province toward the city that amounts to such pressure or direction."

Smith found that at most the plaintiffs can allege that the municipality made a decision that was "consistent with what the province had enacted for its own employees. Whether it could do so in a manner consistent with the terms of the collective agreements is the very issue that must be considered in the arbitration process."

On whether the claim could still be amended in a way that raises the "broad policy and constitutional issues" outlined by the plaintiffs, Smith found that the way they are presented "ties them so closely to the employment relationship and its termination that it would not be possible to meaningfully separate them" and they are better left for a different proceeding.

Meanwhile, in a posting dated November 24, the City of Quesnel said it will be rescinding its mandatory vaccination policy effective December 1.

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