A Purolator driver makes deliveries in Toronto on March 24, 2020. The Canadian Press/Frank Gunn
The B.C. Court of Appeal has overturned a lower court decision that had upheld a labour arbitrator’s ruling that Purolator was unreasonable in its enforcement of a COVID-19 vaccine mandate for unionized employees in British Columbia.
Labour arbitrator Nicholas Glass ruled in November 2022 that Purolator’s COVID-19 vaccine mandate became unreasonable after June 30, 2022, when new variants of the virus were not covered by existing vaccines. Purolator was ordered to pay lost wages and benefits to employees adversely affected by the mandate between July 1, 2022, and May 1, 2023.
Purolator’s COVID-19 vaccine mandate for all employees was announced in September 2021 and went into effect in January 2022. Purolator employees who were not fully vaccinated by January 2022 were placed on unpaid leave, and some were later fired for not complying with the mandate. Teamsters Local Union No. 31 in Prince George, B.C., challenged the policy as unreasonable and took the matter to arbitration.
Purolator’s vaccine mandate was officially suspended on April 30, 2023, and unvaccinated employees who had been placed on unpaid leave were subsequently asked to return to work starting May 1 of that year.
The unanimous decision released Jan. 9 by B.C. Court of Appeal Justices Robert Harris, Suzanne DeWitt-Van Oosten, and Richard Edelmann, constitutes a reversal of Glass’s ruling, saying Glass had incorrectly focused on whether Purolator’s vaccine mandate was scientific instead of whether it was reasonable amid the uncertainty of the pandemic and existing guidance from public health authorities.
Glass said in his decision there was a medical consensus that being double vaccinated no longer provided meaningful protection from getting COVID-19 or transmitting it, particularly with the Omicron variant of the virus spreading. He said this meant the vaccine mandate no longer made the workplace safer, and thus, Purolator was unjustified in making it compulsory.
Purolator went to the B.C. Supreme Court to overturn Glass’s ruling, but the judge upheld the arbitration decision. Purolator subsequently appealed to the B.C. Court of Appeal, resulting in the most recent decision finding that Glass’s assessment was flawed.
The B.C. Court of Appeal did not rule on the vaccine mandate itself, but rather on the criteria for concluding whether Purolator was justified at the time in applying it.
The court noted that as late as September 2022, B.C. Provincial Health Officer Dr. Bonnie Henry had said unvaccinated individuals were more likely to become infected and transmit COVID-19. However, Glass had argued Henry was “scientifically wrong,” something the B.C. Court of Appeal said was unreasonable. Glass also called COVID vaccines “effectively useless,” which the court criticized, and said contributed to its ruling that his arbitration decision be set aside and the matter be heard by a new arbitrator.
The B.C. Court of Appeal decision could create a higher bar for overturning mandates, giving more weight to public health guidance irrespective of scientific uncertainty or dispute. Nonetheless, the Teamsters can still advance claims regarding privacy, loss of livelihood, or the right to make personal choices about one’s body in future arbitration proceedings.
