Turns out, the B.C. courts don’t think it is up to a labour arbitrator to decide if provincial public health orders are correct.
In a decision released Friday (Jan. 9), the B.C. Court of Appeals invalidated a decision granting compensation for lost wages and benefits to Purolator employees and contractors put out of work because they refused COVID vaccines.
The arbitrator had decided that the scientific consensus at the time held that vaccines were no longer effective, even though Provincial Health Officer Dr. Bonnie Henry said otherwise.
“It is apparent that the arbitrator relied on his own assessment of the scientific evidence to reach a conclusion about the effectiveness of vaccination to protect against transmission after 25 weeks…and his conclusion was that it had become incontrovertible, by June 2022, that vaccination was effectively useless to prevent infection,” appeals court justice David Harris writes
But the appeals court found that “correctness” is not the right standard — that the arbitrator should instead be tasked with deciding whether or not the policy was “unreasonable.”
“Rather than ask whether the policy was reasonable, the arbitrator made factual findings about the scientific efficacy of reducing transmission and infection rates through vaccination and then measured the policy against those findings,” Harris writes.
The case stems from a series of grievances filed by the Teamsters union against the package carrier Purolator, disputing the company’s “safe work policy” that required employees to be vaccinated by January 2022, or be put on unpaid leave.
This policy remained in place until May 1, 2023. The labour arbitrator decided this should have been rescinded as of June 2022, because his reading of scientific studies is that the vaccine was no longer effective at preventing transmission by that point. The arbitrator wrote that the vaccine was “effectively useless” once the Omicron strain became dominant, and that this was prevailing medical opinion at the time.
A B.C. Supreme Court judge backed this decision, finding the arbitrator was entitled to make a determination on whether the policy was correct or not.
The appeals judge disputes this application of law and then picks apart the arbitrator’s arguments that there was a consensus that the vaccine was ineffective. The appeals judge points out that B.C.’s provincial health officer was one of the voices still saying vaccines were effective, illustrating there was clearly not a consensus otherwise.
“He asserts that he is factually right about the risk of transmission and infection based on the evidence he heard, and the [provincial health officer] is wrong,” Harris writes.
The court ordered the case to be heard by a new arbitrator.
“Purolator welcomes the recent decision by the British Columbia Court of Appeal, which affirms the steps we took to prioritize the safety and health of our employees, customers, and the communities we serve,” says a statement provided by a Purolator spokesperson.
Black Press Media has reached out to the Teamsters Local 31 for comment.