Union loses fight after BC Court sides with company who laid off unvaccinated workers

A courier company has won an appeal after an earlier BC court ruled that it should not have laid off workers who weren’t vaccinated for COVID-19 after the vaccine began to lose its effectiveness.

The panel of three judges at the BC Court of Appeal ruled that Purolator Canada was right to lay off staff who refused to get vaccinated, even after the usefulness of the vaccine had waned as new strains of COVID came along.

BC Appeal Court Justice David Harris said that Purolator had been held to a legal standard of “correctness” when a standard a reasonableness was required.

“In this case… one is dealing with a pandemic of dramatic proportions, causing widespread illness and death, in which the virus wreaking havoc was constantly mutating and the variants were following each other in successive waves,” Justice Harris said. “In that context, the relevant question is what steps are reasonable, not what steps can be objectively demonstrated to be correct.”

According to a Jan. 9 BC Court of Appeal decision, Purolator Canada imposed its mandatory vaccination policy on Jan. 1, 2022, which lasted until May 2023. The policy didn’t require employees to keep up with vaccinations or boosters, just that they got vaccinated at the beginning.

During the time the vaccination policy was in place, the Canada Council of Teamsters, Teamsters Local Union No. 31, filed numerous appeals against the mandate and one was ultimately successful.

The union argued that, as the effectiveness of the vaccine had waned by June 2022, it wasn’t necessary for staff to be vaccinated.

The company and the union spent more than three weeks arguing their points in arbitration before the Union won.

The labour board ruled that the company was justified in having employees vaccinated up until June 2022, but as vaccinations only gave significant protection for 25 weeks, the policy after June 2022 was unreasonable.

The company then appealed the ruling at the BC Supreme Court, which also sided with the Union.

The Union argued the effectiveness of two doses of the vaccination after 25 weeks was on average nine percent, calling it “statistically insignificant.”

However, the BC Court of Appeal saw it differently.

“At no time did the arbitrator explain why that degree of protection was statistically insignificant or effectively useless,” the Justice said. “In my view, it is by no means clear why an average of 9% effectiveness should be treated as either statistically insignificant or render vaccination effectively useless.”

The arbitrator said the prevailing opinion of the public health authorities, supported by the objective science, found that by spring 2022 the vaccination was ineffective to protect against infection.

But again, the Court of Appeal found this conclusion wasn’t supported by the evidence.

The decision parsed through numerous arguments from the Union about the effectiveness of the vaccine after 25 weeks, but ultimately ruled against it.

The issue will now go back to the labour board, but with a different arbitrator.

“In my view, given the nature of the deficiencies embedded (by the arbitrator) this is a suitable case for fresh eyes,” the Justice said.