4 N.B. government employees in court challenging vaccination rule

A teacher, a nurse, a health network administration assistant and an educational support teacher are suing New Brunswick over what they claim is an unconstitutional vaccine mandate, and theprovince wants the suit dismissed.

The fouremployees sued the province in Novemberafter it made it mandatory for all employees to get vaccinated or face unpaid leave. The deadline was Nov. 19, when about2,000 workers were unvaccinated and had to go on unpaid leave.

Now, 563 of the 58,000 government employees remain without COVID-19 vaccination, and are still onindefinite leave without pay. They can still get vaccinated and return to work, said spokesperson Erika Jutras.

Stuart Murray has been aneducational support teacher at Anglophone East School District for about four years.Trista Michaud-Hacheyis a teacher at Oromocto High School who worked for the province for 18 years. Tabatha Belding has beena registered nurse at the Dr. Everett ChalmersRegional Hospital in Fredericton for sixyears, and Lisa Gorhamhas worked for the province for 22 years and isan executive assistant at Horizon Health Network.

They are all on unpaid leave, the court heard Wednesday, and haven't resigned or been dismissed.

All fourallege the province is contravening theirright to life, liberty and security of the personby requiring proof of vaccination to allow them to work. They're asking to be reinstated with payment of lost wages or pay in lieu of lost wages. They're also asking the judge to make a declaration that the policy is unconstitutional.

Attorney general wants judge to dismiss suit

The province's lawyer, Justin Wies,madearguments on why the lawsuit should be dismissed Wednesday. Hesaidtheissue should first be dealt with by an employee grievance processbecause that's what the law requires.

Wies said if the employees are not happy with the decision from an arbitrator, they can then go to court and ask for a judicial review.

"The framing of the issue as aconstitutional challenge doesn't[preclude] them from having to go through labour board," Wies said.

James Kitchen, the lawyer for the employees, said this is not exclusively a labour case. The "most important" remedy they want is the declaration from the court that the policy is against the Constitution, he said.

"They're pursuing a larger interest more than workplace concerns," he said."They're making this application on behalf of other employees."

Unions say adjudicator should hear case

On Wednesday, Justice Thomas Christie of the Court of Queen's Bench allowed theNew Brunswick Nurses Union and the New Brunswick Teachers Federation to intervene on the case and make short arguments.

Jol Michaud, who is representing both unions, made arguments supporting the province's stance. He said the unions believe this issue should be first dealt with in a labour arbitration before anything else.

He said if the courts allow the employees to skip the arbitration process then it would be "in essence usurping the role of the employee associations."

Christie said he is "sensitive" to the issues brought forward by the four employees, but he may be limited in what he can do by the law that requires only one forum to deal with labour issues.

"We're not going to have a system where you can have relief granted with respect to employment under two different fora," he told Kitchen.

"You can seekstanding and have at it, but you don't get access to two different fora for thepurposes of getting remedial relief related to employment. You've got to help me get over that."

In response, Kitchen said this policywas brought forward by an order from cabinet, not by any collective agreement. He said this means this case is beyond the labour grivance process.

"The origin of this is outside of that," Kitchen said. "The best way to deal with it is outside of that."

He also said a labour arbitrator can't make orders about the constitutionality of a policy.

Christie addressed the four employees in his final comments Wednesday and said he wants them to know that he appreciates the importance of this case.

He referenced two paragraphs in their application. The first said:"When a woman is raped, she no longer has control of her body, the rapist partly does. When a man is a slave to another he no longer has sole ownership and control of his body.

The second said: "Likewise when a person received an injection into their body against their will and only so that they can continue to feed their children and pay their rent, they no longer have sole ownership or control of their body."

Christie said those paragraphs were "illustrative" of howthey feel about the issue.

"I hope that they understand that I'm sensitive to how important and how visceral these issues are for themregardless of whatever the law might allow [or] not allow me to do."

The court also heard Wednesday that some of the four employees have filed grievances about this policy as well.

If the judge sides with the province, the lawsuit is dismissed. If he sides with the employees, the case will go ahead and the constitutionality of the vaccine mandate will be tested. Christie said he will share his decision in the coming weeks.