To avoid 'complete chaos,' lawyer to challenge Quebec vaccine mandate for health-care workers in court

Montreal -

A Montreal-based lawyer is planning to file a legal challenge to suspend Quebec's sweeping COVID-19 vaccine mandate for all of its health-care workers just days before the new directive takes effect, CTV News has learned.

The government decree, announced in September, will take effect Oct. 15 and will force all health-care workers who are not fully vaccinated to be suspended without pay, regardless of whether or not they have direct or indirect contact with patients. The decree applies to all workers, from nurses to cleaning staff.

Despite calls from some health-care workers’ unions and opposition parties to push back the deadline over concerns the health-care system won’t be able to cope, the François Legault government said it won’t budge and the deadline still stands. As of Thursday, there were still more than 27,000 workers who are not fully vaccinated. 

• Dube holds firm to Oct. 15 vaccination deadline for health-care workers

Civil litigation lawyer Natalie Manole will file a safeguard order, also known as a provisional injunction, on Tuesday in Quebec Superior Court in Montreal, in what is believed to be the first legal challenge of the decree.

She is asking the court to suspend, on an urgent basis, the directive until a decision has been rendered on the validity of the measure. She intends to argue in court that the mandate for health-care workers violates their rights and that suspending workers is against the public interest.

In an interview with CTV News on Saturday, Manole said with thousands of workers who are still not vaccinated and who will not be able to go to work on Oct. 15, “there's going to be complete chaos.”

“We have a lot of declarations in support of our file for how the health-care system will suffer immensely,” she said.

“Our position is that nothing has been done within this decree to protect the rights of the public. So, to have access to care even though more than 20,000, health-care workers are going to leave their job on Friday.

“So, cancelled surgeries, patients with no family doctors, people who just won't be able to have breakfast the next day because the person doing the night shift is not going to be there to prepare the breakfast for them. Just a lot of patients that are not going to be attended [to].”

Manole said she has been in contact with more than 100 health-care workers concerned about the government directive and intends to argue it violates rights protected by the Constitution.

The government could impose less restrictive measures in health and social services settings by requiring routine COVID-19 testing for workers instead of making vaccination mandatory for those workers, according to Manole. 

“[Testing] is definitely more in the public interest because the health-care system is not going to be affected the same way as it will be affected by having more than 20,000 health-care workers leaving their job on Friday," she said. 

SIMILAR CASE WENT TO COURT IN 2009

It will be up to the government to justify whether the exceptional measure is reasonable and could turn to other cases where courts have upheld decisions of employers to suspend a worker for putting patients at risk by refusing a vaccine. A similar case happened in Rimouski, Que. in 2008.

Micheline Bernier, a nurse assistant working at a long-term care home, was put on unpaid leave for 48 hours for refusing the flu vaccine during an outbreak among the residents in January 2005.

Bernier filed a grievance with the union to seek her lost wages and the case went to arbitration. The arbitrator agreed with the employer’s decision, saying that to put her on unpaid leave during an outbreak when she was made aware of the care home’s policy was reasonable.

Bernier lost an appeal of the decision in Superior Court in 2009. Justice Gaétan Pelletier ruled that the employer respected her personal freedom to not take the vaccine and that holding back her pay “must be considered as an economic constraint and not an infringement of a fundamental right provided for by the Charters.”

Manole, however, said there are significant differences in that case and the COVID-19 vaccine mandate that will soon take effect in Quebec. Most notably, she said, is the fact that the Rimouski case was limited to one facility and the leave without pay was only limited to 48 hours.

The key thing that sets the two cases apart, she noted, is that decree is province-wide and affects thousands of workers and not just one nurse, as well as the uncertainty around when the vaccine mandate will end. 

OPPOSITION PARTIES WANT GOVERNMENT TO WAIT

Minister Dubé said on Wednesday that more details about the province’s contingency plan will be released next week. He has already announced an ambitious plan to spend $1 billion in bonuses to bring back more than 4,000 nurses to the struggling health-care network. 

But with the clock ticking, the Parti Québécois (PQ) backed several unions in their calls for the government to wait to enforce the vaccine mandate.

PQ MNA Joël Arseneau said Wednesday the party is trying to protect the health-care system.

"We’re defending services," he said. "We’re saying if the government didn’t reach its goal of having 100 per cent of the people working in the system vaccinated, does that mean the public, the citizens, the sick people will have to cope with not having services?"

Quebec Solidaire MNA Vincent Marissal also wants to know what Quebec's plan is after Oct. 15.

"We still don’t have the real plan, what is the real plan from Mr. Dubé? To make sure that we are not going to have some 'bris-de-services' [breaks in services] everywhere in the network."

Meanwhile, Liberal Party Leader Dominique Anglade said the Legault government waited too long to announce mandatory vaccinations.

"Right now, we feel it’s completely improvised. [In] September, they said there was not going to be any impact on services — we’re seeing impacts as we speak, and we still haven’t seen a plan for Oct. 15."