The recent decision of arbitrator Nicholas Glass in the Purolator Canada case provides a major upset to the vaccine mandate regime.
In a Dec. 14 decision under the Canada Labour Code, Glass awarded compensation to employees who were kept too long from their positions due to vaccination status, a first in Canada as far as I can tell.
Further, he demolishes the foundation for B.C.’s current vaccine mandates for health-care workers by finding that, as of March 2022, vaccines protected from neither infection nor transmission. They had waned steadily in effectiveness.
In a province where courts and arbitrators have been quick to back the decisions of health officials, no matter how minimal the evidence, the case will send shock waves through the system.
If his finding is recognized by others, the entire foundation of B.C.’s ongoing vaccine mandates has crumbled.
Glass found that while there was justification for the original mandates based on the advice from health authorities and other experts at that time, Purolator had a continuing obligation to pay attention to health advice as it changed over time. And change it did.
He finds that after March 2022, the authorities were no longer asserting “that a two-dose vaccination after 25 weeks was of any value in protecting against infection.” He concludes that the unpaid leaves of absence ceased to be reasonable as of June 30, 2022. The employer did not in fact end them until nearly a year later, on May 1, 2023.
It’s been my view for some time that mandate issues need to be properly litigated, and this case shows the startling results which can develop when a well-informed arbitrator or judge has good evidence to work from.
The union called an expert immunologist who testified that “the COVID-19 vaccines in use provided no reliable protection from infection” 60 days after the second dose.
Glass found that the evidence she presented was “overwhelming and persuasive,” and he preferred it over the evidence of the employer’s expert.
His most startling and important observations were in relation to the position of B.C. government authorities, in particular the provincial health officer Dr. Bonnie Henry.
Henry’s series of public health orders relating to vaccine mandates for health-care workers continue to this day, which is why the unvaccinated health-care workers remain fired.
Her orders are always closely supported by Health Minister Adrian Dix.
In her order of September 12, 2022, Henry said 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.” (This language continues in the current order.)
Glass does not agree: “I must conclude that this statement is an outlier. It is wholly inconsistent with the preponderance of material I have been presented with.”
Wholly inconsistent! B.C. government lawyers will be reading this conclusion very carefully.
Now, arbitrations are not binding in the way court decisions can be, but they are influential. To me the logic in this decision is extremely persuasive and I expect it will have significant ramifications, particularly for the unvaccinated health-care workers in B.C. who were fired over two years ago now.
They were the heroes of COVID, for whom we banged on pots and pans every night in recognition of their hard work and sacrifice. They laboured mightily in B.C. hospitals, saved lives and worked long and tough hours. Their thanks? To be fired.
Some have moved to private health facilities. Or retired. Or left B.C. altogether. But many remain at home with shattered lives and no income.
Like all those who were fired due to mandates, including the Purolator employees, no number can be put on their anguish. They lost their positions, their livelihoods and their standing in their profession and community. Their families have suffered. Most had given their entire careers to their profession and were fired for asserting a fundamental human right.
The government has steadfastly refused to hire them back, despite the acute staff shortages in B.C.
When Minister Dix is asked about the mandates, he insists that they will continue. But why? Given that the rest of the country abandoned their mandates long ago, is there any actual health reason for keeping them? The Purolator decision is clear: Unvaccinated workers pose no different a threat to the public than vaccinated workers.
In their fall update, neither Minister Dix nor Henry provided any additional health rationale for the mandates.
In fact, their explanation only muddied the waters. While encouraging all British Columbians to get their fall booster, they did not require that health-care workers go beyond the minimum first two doses from 2021, and acknowledged that all vaccinations have waned in effectiveness, confirming the findings of Glass.
The inevitable conclusion is that the determination to continue mandates is entirely a political calculation, likely because the province wants to be able to control staff in their vaccine requirements. If the order is indeed political not health, it is not in the purview of the PHO.
If a good health argument had been made, then so be it. But it has not, and any pretense of an argument has now been demolished by Glass.
Most of the fired health workers – union, non-union and physicians – are currently in litigation. Needless to say, if the orders are found to be invalid, the cases could be very expensive for the provincial government.
Alone in Canada, the unvaccinated B.C. health-care workers – heroes of the pandemic – remain out in the cold. But they may yet get their relief. The Purolator decision can only help.
Suzanne Anton, KC, was attorney general of B.C. from 2013 to 2017.
