N.B. judge dismisses ‘rambling’ application challenging COVID-19 vaccine mandate

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A New Brunswick judge has dismissed an application challenging the provincial mandate for all government employees to get vaccinated against COVID-19.

The advocacy group Stand 4 Freedom New Brunswick made the court filing on behalf of four government employees, including two teachers and two Horizon Health employees, in November 2021.

Government employees in New Brunswick — including those working in health care, education and long-term care — must show proof of full vaccination or face unpaid leave.

According to a news release from the group in November, the four applicants were challenging the mandate as “unconstitutional and therefore of no force or effect.”

“If we can be barred from working in the public service as teachers and nurses because we decline irreversible medical interventions or decline to disclose to government the nature of those personal choices, then we no longer live in a free and equal society,” Stuart Murray, a teacher with Anglophone East School District, was quoted as saying.

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The other three applicants are Trista Michaud-Hachey, a teacher in the Anglophone West School District; Tabatha Belding, a registered nurse with Horizon Health; and Lisa Gorham, an executive assistant with Horizon Health.

‘The law is clear’

The applicants claimed the vaccine mandate violates their charter rights of liberty, security of person, personal health choices and reasonable expectation of privacy regarding medical information.

However, in a written court decision released Thursday, Court of Queen’s Bench Justice E. Thomas Christie accepted the province’s motion to dismiss the application.

According to the decision, the province wanted the application to be dismissed “on the basis that the court lacks jurisdiction,” since the applicants would be covered by a legislated adjudication scheme through their employers.

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“The Applicants must remain within the dispute resolution processes applicable to them. While I accept that there may be appropriate times for curial intervention, this case is not one,” said Christie.

“The law is clear. In circumstances like this, where adjudication provisions exist, the court has no role as a forum of first instance on the merits of the Application.”

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Christie also brought up issues from the application itself.

“In what can only be described as a rambling 8 pages of stated ‘grounds’ in the Application, counsel cast the underlying claim as if the Applicants are being forced to do something against their will,” Christie wrote.

“They are not.”

Christie said the applicants compared themselves to “victims of some of the most brutal of crimes,” and “those who have been held against their will as slaves.”

However, he said there is no standalone right to employment in the civil service.

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“I join in the developing judicial view that, in the circumstances of a global pandemic, policies of the type presently at issue force no one to do anything,” he said.

The judge also wrote that at the time the application was filed, the applicants asked for it to be heard quickly “given the immediate impact” of their non-compliance.

In response, he said the court directed that a hearing date be set about two weeks after the application was filed.

“Despite asking for the expedited date, and having one assigned, the Applicants advised the court that they would not be able to proceed since they had not completed the gathering of the evidence they considered necessary to support their Application,” Christie said.

“It would not be considered proper practice to ask a court for an advanced hearing date without first being in a position to proceed when one is given.”

— with files from Rebecca Lau

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