Union Collective Agreement Causes BCSC Judge To Throw Out Vaccine Mandate Case

Recently, a B.C. Supreme Court Justice threw out a case involving several former employees working for the City of Quesnel. They sued the City, the City Manager, and the Province of British Columbia for attempting to force them into taking certain “injections”, to protect against an imaginary disease.

This case wasn’t decided on its merits. Instead, it came down to a lack of jurisdiction. The Plaintiffs had hoped the Court would be able to fix their problems. They were all part of the Canadian Union of Public Employees (CUPE), which probably did nothing to advance their interests.

However, there are several sections of the B.C. Labour Relations Code which have made this lawsuit impossible to advance. Specifically, as union employees with the City of Quesnel, they are prohibited from taking this to Court. Their union and collective bargaining agreements state there are different remedies.

Consequently, the Defendants brought an Application to Strike based on Section 9-5 of the B.C. Rules of Civil Proceedure. Given the terms of the collective agreement, it was argued that there was no cause of action against Quesnel.

This is not to justify (in any way) attempting to coerce the clot-shots. But the regulations make it inevitable that no court case would proceed.

It goes something like this: City employees are required to bring their issues up in the form of a grievance. If there still isn’t satisfaction, then the next step is arbitration. There are then limited avenues to appeal the outcome of arbitration, if it was unfair.

Effect of certification
27(1) If a trade union is certified as the bargaining agent for an appropriate bargaining unit,
(a) it has exclusive authority to bargain collectively for the unit and to bind it by a collective agreement until the certification is cancelled,
(b) if another trade union has been certified as the bargaining agent for the unit, the certification of that other trade union is cancelled for the unit, and
(c) if a collective agreement binding on the unit is in force at the date of certification, the agreement remains in force.

Section 84 gets into dismissal and arbitration. Every collective agreement has to address this in some form or another. Although the terms of dismissal and discipline vary considerably, something must still be put into writing.

Dismissal or arbitration provision
84(1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.
(2) Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.

Section 89 of the Act gives an arbitration board the final say to impose a remedy.

Unfortunately, this is hardly unique. Most (if not all) public sector employee unions have some sort of clause which mandates grievances and arbitration as an alternative to Court. But in fairness, it’s doubtful that any of these were drafted with this specific issue in mind.

The employees argued that the circumstances of this case were an exception to the requirements that would have them go through other processes. However, that argument was rejected.

They also brought up the idea that pressuring employees to take this drug would amount to assault under the Criminal Code of Canada. That fell apart when it was pointed out that civil remedies for criminal allegations weren’t possible. Additionally, none of the Plaintiffs actually took the shots.

The Claim against the Province was struck on the basis that it “does not allege the existence of any employment relationship between the province and the plaintiffs”. The counter argument was that the vaccine mandates came from the Province itself.

The Plaintiffs did try to remove the City Manager from the case. But they didn’t seek an Order under Rule 6-2(7) of B.C. Civil Procedure. As such, he remained as a Defendant, and would now be able to seek costs.

All in all, the ruling is disappointing, but not a huge surprise. Unions typically have agreements which limit the ability of employees to seek legal action in Court. The only way to get into Court would be a limited scope to appeal if arbitration was unfair or biased.

But being pressured into taking certain drugs probably isn’t what the people who wrote these agreements had in mind.

(1) https://www.bccourts.ca/jdb-txt/sc/22/20/2022BCSC2003.htm
(2) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc2003/2022bcsc2003.html
(3) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc2003/2022bcsc2003.pdf
(4) https://www.canlii.org/en/bc/laws/regu/bc-reg-168-2009/latest/bc-reg-168-2009.html
(5) https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-244/latest/rsbc-1996-c-244.html
(6) https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec265_smooth

One Reply to “Union Collective Agreement Causes BCSC Judge To Throw Out Vaccine Mandate Case”

  1. My understanding is that people can opt out of being union members, provided they pay the portion of the fee that is allocated to collective bargaining. It isn’t easy and they will be told they can not.

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