The Federal Court has dismissed the attorney general’s motion to strike a lawsuit filed by air travel employees who are suing Ottawa over its COVID-19-era vaccine mandate.
In a decision rendered on Feb. 7, Associate Judge Michael Crinson allowed the proposed lawsuit against the Canadian government and the minister of transport to go to class certification.
The plaintiffs include airline pilot Gregory Hill, airline station attendant Brent Warren, and former flight attendant Tanya Lewis. Hill and Warren were both suspended for not complying with the mandate, whereas Lewis was suspended and eventually terminated.
The plaintiffs argue the disciplinary measures imposed by their employers, who were conforming to Ottawa’s vaccine mandate for airlines, unjustifiably induced breaches of collective agreements. They also say the Charter right to freedom of association was breached.
Ottawa imposed a vaccine mandate on air travel and federally regulated sectors, including aviation, in the fall of 2021. The order imposing the mandate was not renewed in June 2022.
The plaintiffs had initially alleged liability grounds such as negligence, interference with contractual relations, breach of privacy, and several Charter breaches.
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The plaintiffs amended their claim to focus the arguments on inducement of breach of contract, misfeasance in public office, and violation of section 2(d) of the Charter on freedom of association.
“Such a significant narrowing of the issues will enhance the opportunity for the parties to resolve the proceeding,” Crinson wrote in his decision rejecting the government’s motion to strike, which had been filed in spring 2024.
In examining the motion, Crinson had to determine whether the claim has a chance of success. He said the pleaded facts in the amended statement of claim demonstrate enough “cause of action” with respect to the allegations.
The plaintiffs’ statement of claim argues the ministerial order imposing a vaccine mandate had improperly and unjustifiably imposed a new term and condition of employment outside collective bargaining, which they say is a breach of section 2(d).
They also say the defendants induced employers to breach contractual employment agreements.
Regarding the claim of misfeasance, the plaintiffs argued the minister of transport, who was Omar Alghabra at the time, “had no basis in fact to justify the Order as a measure to prevent transmission of COVID-19.” The plaintiffs argue vaccine product monographs do not say they prevent transmission. They also say vaccines were mandated without evidence of long-term safety data.
The defendants have argued the vaccine mandate was a core policy decision and therefore they are immune from tort liability given there was no bad faith involved.
They have also told the court the lawsuit is an abuse of process given the plaintiffs are members of trade unions and should deal with the issue through the grievance process.
Crinson responded by writing it is not “plain and obvious” the defendants are immune from tort liability and that the dispute is not between employees and employers, since the latter are not part of the proceeding.
Transport Canada told The Epoch Times in a statement it is aware of the court’s decision. “The Government of Canada’s position is that the vaccination mandate was consistent with the Canadian Charter of Rights and Freedoms, as well as Canada’s obligations in the area of human rights,” spokesperson Sau Sau Liu said.
The mandate had become increasingly untenable in the spring of 2022. Air travel and airport operations were being severely impacted at the time due to labour shortages and public health restrictions, causing significant delays.
“The relevant authorities must urgently consider removing the last remaining travel related COVID-19 restrictions and work with the industry on policies and processes which will allow passengers to pass through airports with no undue delay,” Peter Cerda, vice president of the International Air Transport Association, said at the time.
WestJet’s CEO Alexis von Hoensbroech had also called for the vaccine mandate to be dropped. “As vaccines are not preventing the spreading of the virus since [Omicron], there is no more logic to maintain it,” he said on social media.
