Legal Challenge No. 1 - NB Civil Servants vs Government of New Brunswick
Citizens’ advocacy group Stand 4 Freedom New Brunswick has filed a court application on behalf of four New Brunswick government employees challenging the Provincial Government’s mandate requiring all civil servants to provide proof of vaccination or be placed on indeterminate unpaid leave effective November 19, 2021. The court application was filed in the Court of Queen’s Bench of New Brunswick. The Applicants seek a declaration that the Cabinet-approved vaccine mandate is unconstitutional and therefore of no force or effect.
The court application outlines that the vaccine mandate violates the Canadian Charter of Rights and Freedoms, in particular liberty (bodily autonomy) and security of the person under section 7, and reasonable expectation of privacy regarding medical information and personal health choices, such as vaccination, under section 8. A link to the full press release as well as related documents can be found below.
On December 1, 2021, the legal team submitted for filing with the court a Notice of Motion for an Interlocutory Injunction staying enforcement of the civil services mandates. This step was taken because indications are that the Application would not be heard until well into 2022. We are hopeful that the injunction motion will be heard as early as January, but we are awaiting the court's direction on that, an update will be provided when the hearing date is set.
Further to our last update, our legal team advises that, while our motion for an interlocutory injunction staying enforcement of the vaccine mandates for provincial government employees was submitted for filing with the court on December 1, a hearing date has not yet been set by the court.
The court has however, set a date of January 19, 2022 to hear a motion filed by Government lawyers on the question of jurisdiction. The Government is arguing that the court doesn't have jurisdiction to hear our challenge because, in their view, labour laws prevent provincial employees affected by the mandates (unionized or not) from seeking legal recourse through the courts. Our legal team disagrees with the Government's position on this issue in the current circumstances, and will be prepared to argue the issue on January 19. If successful, they will then request the court hear the injunction motion shortly thereafter.
In a decision dated February 10, 2022, Justice Christie granted the NB Government’s Motion to dismiss our Application on jurisdiction grounds. In effect, the Judge found that the four applicants were barred from bringing the constitutional challenge to the courts and instead had to proceed individually through their specific labour relations process. We believe the Judge erred by not giving more weight to the distinction that only a court has jurisdiction to strike down an unconstitutional law – labour arbitrators do not.
We are therefore disappointed in the decision and are evaluating next steps with our legal counsel.