The facts
On September 24, 2021, the Quebec government adopted Order-in-Council 1276 – 2021 (the « Order-in-Council »), which requires that persons working in the health and social services sector provide evidence no later than October 15, 2021 that they have been adequately vaccinated against COVID-19 or face unpaid suspensions.
137 workers in the health and social services sector governed by the Order-in-Council went to court seeking an order to quash the provisions of the Order-in-Council with respect to imposition of the mandatory vaccination and the corresponding penalty of unpaid suspension for failure to comply.
On October 13, 2021, the government announced that it would postpone the deadline for double vaccination under the Order-in-Council to November 15, 2021.
Finally, on November 4, 2021, the government announced that it was no longer requiring the double vaccination of health workers under the Order-in-Council. Thus, between the date of hearing, i.e. October 27, 2021 and the date set down for judgment, November 15, 2021, the government significantly altered its position.
The Superior Court agreed to hear the case, notwithstanding the argument of the Attorney-General of Quebec (the “AGQ”) that the issue was moot as the government had decided to no longer enforce the Order-in-Council.
The motion to stay was filed by the Applicants in the context of an application for judicial review seeking a judicial declaration to quash the Order-in-Council (the Applicants asked that enforcement of the Order-in-Council be “stayed” pending the outcome of the hearing before the Superior Court on the merits of the matter.).
The enabling statute underlying the Order-in-Council
The Public Health Act allows the government to intervene, where necessary, via a range of measures in order to protect the health of the public. In the present matter, the Order-in-Council was adopted within the framework of the public health crisis decreed by the government under the Public Health Act.
The Order-in-Council impacts on a broad spectrum of employment sectors: for example, it applies to LCSCs (local community service centres), CHSLFs (residential and long-term care centres), residences privées pour aînés (retirement homes), private medical clinics and ambulance services.
Arguments and counter-arguments
The Applicant workers admitted they had received no COVID-19 vaccination and had no intention of doing so. In support of this position, they relied upon the right to not be deprived of the security of the person pursuant to section 7 of the Charter of Rights and Freedoms, and the right to earn a living, adding that they were prepared to accept the alternative of regular screening. The refusal to be vaccinated was not supported by any substantive ground. They also referred to defects in the current health system and the impact on the health care system of an unpaid suspension for failure to be adequately vaccinated, which would adversely effect the service offer in the health sector.
The AGQ replied that the Applicants were relying upon hypothetical scenarios concerning interruption of services that may or may not be caused by the Order-in-Council, that in any event had been adopted in the public interest. Furthermore, the criteria for granting a motion to stay had not been met by the Applicants.
The judgment
The criteria to be assessed in determining whether a motion to stay a proceeding should be granted are the same as those relevant to an application for an interim injunction, and are well-established by the case law:
- urgency of the situation
- colour of right
- serious and irreparable harm
- balance of convenience
The Court relied thus on these criteria in coming to a decision as to whether to grant or deny the stay sought by the Applicants.
The Court first determined that the criteria of urgency and colour of right had been fulfilled. In fact, as the deadline under the Order-in-Council was still set for November 15, the Court ruled that urgency had been established, notwithstanding the government decision to waive its application, as the Order-in-Council had not been amended since this announcement.
However, on the issue of serious and irreparable harm, the Court was of the view that the personal harm that the Applicants might suffer could be repaired in the event the Order-in-Council was was declared invalid by the judgment on the merits. In fact, a judgment on the merits might repair the monetary harm suffered arising our of the unpaid suspensions under the Order-in-Council.
Furthermore, nothing in the evidence presented added up to a proper demonstration, in the Court’s opinion, of serious harm to beneficiaries in the public health system and their right to receive adequate health services.
On the contrary, the Respondent was rather successful in demonstrating through testimony that a serious effort had been undertaken to restructure health care services and to ensure that critical and emergency care could be offered once the Order-in-Council was applied.
Finally, the Court was of the view that the balance of convenience tipped more in the direction of the government, as the Applicants had failed to prove that the public interest would be better served by the issuance of the order to stay than to refrain from doing so.
The Court ruled that it was inappropriate under these circumstances to grant the stay and suspend application of the Order-in-Council.
Although the Court was not ruling on the merits of the case, it nevertheless made the remark that “…there exists no right to purely and simply refuse vaccination”. The Public Health Act allows the government “to intervene as required through a range of measures”.
Conclusion
We note that this judgment did not resolve the dispute between the parties. The matter is ongoing until the hearing of the trial on the merits, unless either or both the parties discontinue in the meantime.
The Order-in-Council then, remains in force and effect, although the impact of this judgment remains limited in scope for workers in the health sector, given that the government had already announced in advance that it would not apply it for the time being.
Lachance v. Attorney General of Quebec, 2021 QCSC 4721 (Honourable Justice Michel Yergeau, J.C.S.)
