Judge throws out federal lawsuit challenging CAF vaccine mandate

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A federal court judge has tossed a lawsuit filed by 330 current and former Canadian Armed Forces members each seeking more than $1.3 million in damages for having their Charter rights allegedly violated by a 2021 COVID-19 vaccine mandate.

Now, they’ll collectively pay $5,040 to Canada in court costs.

Ruling in favour of the government’s motion to strike the case, Associate Judge Catherine Coughlan repeatedly discounted the plaintiffs’ claims under the Canadian Charter of Rights and Freedoms because their pleadings were devoid of “material facts” or “evidence” to support the allegations and prove a reasonable cause of action.

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Coughlan said the pleadings — presented in individual paragraphs that include details about each plaintiff, including vaccination status — are “replete with vexatious language” and “bald assertions of bad faith.”

“For example, various COVID-19 vaccines are labelled an ‘experimental gene therapy’ and ‘biologics,’ without any basis for these statements established,” the Edmonton-based judge wrote in a Nov. 13 decision. “The COVID-19 pandemic is also referred to as an ‘emergency’ without any basis indicated for the use of the quotation marks.”

“The only indications of bad faith are found when the pleadings baldly assert that, among other claims, Canada failed to carry out safety and efficacy testing for the vaccines, and that the Directives were premature and ‘promoted the fraudulent use of the biologics.’”

The judge also noted that some of the pleadings constituted an “abuse of process” by suggesting without any evidence that some CAF officers’ enforcement of the mandate was “criminal in nature.”

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‘Springboard’ for bigger fight against CAF brass

Filed in June 2023, the suit sought $1 million in damages, $350,000 for failure to comply with various statutes, regulations, and administrative policies, as well as other unspecified special damages. It also demanded declarations that mandating shots for CAF members violated the plaintiffs’ rights.

The CAF vaccine orders first came down in 2021, with an exemption only available if it interfered with religious beliefs, presented a medical risk or resulted in discrimination, as specified under the charter.

“Failure to comply with the directives could result in CAF members facing administrative and remedial measures, including release,” Coughlan wrote, noting roughly 120 of the plaintiffs remain active members, with the rest having moved on, either voluntarily or by discharge.

The statement of claim also specifically named former Minister of Defence Anita Anand and Chief of Defence Staff Gen. Wayne Eyre, along with several other high-ranking CAF officers, as defendants.

In July, the government filed to have the lawsuit struck down because of the unsupported allegations, lack of facts, “vexatious language” and the claims against the individually named defendants.

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Coughlan’s decision noted the plaintiffs’ counsel, Catherine Christensen of Edmonton’s Valour Legal Action Centre, said during a Sept. 19 hearing that the vaccine mandates are a “springboard” for a class action suit more focused on the “abuse of authority within the CAF.”

Last June, Christensen told the National Post the court action was not about COVID-19, but the “corrupt chain of command that thinks they are untouchable and above the law.”

Coughlan ruled that “such broad and unfocused assertions do not rise to the level of exceptional circumstances” to warrant the federal court allowing the case to proceed.

Failed claims

The suit alleges the CAF’s mandate violated four sections of the charter.

As it relates to section 2a and freedom of religion, Coughlan found 174 plaintiffs had applied for religious exemption, the majority of which were denied because a “specific religious belief or practice in which they sincerely believe” wasn’t identified.

Coughlan said only one plaintiff, who allegedly received an accommodation after claiming to be a practising “Pansexual Pagan” – referenced a specific belief in their pleadings, but did not support it with material facts.

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“Further, none of the Plaintiffs identify how a religious belief was infringed or interfered with in a non-trivial manner by the Directives,” Coughlan decided.

A claim under section 8 – which protects a person’s right against unreasonable search and seizure – suggested vaccine data was stored on “an unsecured network, known as a Monitor Mass” and that three plaintiffs said their belongings were searched.

“Again, however, no material facts are pled to particularize these allegations, or to connect or establish a connection to the Directives,” the judge wrote, echoing the ruling for other alleged violations.

As of 2023, only CAF members required to maintain “operational readiness” are required to have received at least the primary series of vaccines, with no provision for boosters. However, the CAF continues to advocate for all members to be vaccinated and encourages boosters for those who are eligible.

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