Public health employers part of government, subject to charter, says union
A British Columbia arbitrator has ruled that certain health sector employers were not subject to the Canadian Charter of Rights and Freedoms when placing unvaccinated nurses on unpaid leave or terminating their employment during the COVID-19 pandemic.
In September 2021, the BC Provincial Health Officer (PHO) issued several orders under the province’s Public Health Act in relation to the pandemic. The orders included the Residential Care Staff COVID-19 Preventive Measures Order and the Hospital and Community (Health Care and Other Services) COVID-19 Vaccination Status and Preventive Measures Order, both of which applied to care locations.
The orders required proof of vaccination against COVID-19 by certain deadlines for people to enter a care location. They applied to employees of operators of a care location, contractors and their employees, health-care providers, and personal care providers. The orders remained in force in BC until July 26, 2024.
All health sector employers under the umbrella of the Health Employers Association of British Columbia (HEABC) were subject to the orders, so they notified their employees of the vaccination requirement. If employees didn’t provide proof of vaccination or a valid exemption by the prescribed deadlines, they would be placed on unpaid leave or their employment would be terminated.
Some employees, including unionized nurses, didn’t provide the required proof of vaccination or an exemption, so some were put on unpaid leave and others were terminated. The BC Nurses’ Union (BCNU) filed hundreds of grievances on behalf of affected nurses. Seven employers under the HEABC - five regional health boards, the Provincial Health Services Authority, and Providence Health Care – were subject to the charter and violated the nurses’ rights under ss. 2, 7, 8, and 15 of the charter when they put nurses on unpaid leave or ended their employment, said the BCNU.
Application of charter
The central question was whether the seven health employers were considered “government” under s. 32 of the charter, either by their institutional nature or in respect of their employment decisions.
The arbitrator noted that s. 32 indicates that the charter applies “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province” and that the health employers were not institutionally part of the BC government.
However, the arbitrator also noted that it had been established by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327, that public or quasi-public institutions could be part of “government” within the s. 32 meaning if their nature or degree of governmental control over them could characterize them as government, or a particular activity they performed could be seen as governmental in nature.
With regards to the first branch of the test in Eldridge, the arbitrator found that the health employers weren’t “governmental” by nature or by degree of governmental control. While acknowledging the public and statutory framework in which the health employers operated, the arbitrator found that it didn’t amount to the level of routine or direct control necessary for charter obligations to apply.
The health boards and the PHSA weren’t quintessentially governmental in nature, and neither the Minister of Health nor the government exercised substantial control over their day-to-day operations as employers, said the arbitrator, adding that the governing boards of the health employers weren’t elected by or accountable to the public, and they made their own staffing and administrative decisions independent of the government.
As for the second branch of the Eldridge test, the arbitrator found that compliance with vaccination orders issued by the PHO wasn’t the same as implementation of a governmental policy or program. The decisions by the health employers were internal responses to a legal restriction that barred unvaccinated employees from working at care locations, the arbitrator said.
Unpaid leave, termination
“Any employer has to enforce statutory employment-related obligations like employment standards, so an order that's issued by the government which is then imposed on an employer doesn't turn it into a government putting it into effect,” says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver.
“To me, it was an extreme reach for the [BCNU] to take the position it did, because the charter is only meant to apply to government and public bodies - if you're introducing a public order into any private employer, it isn't going to turn magically into the government.”
The arbitrator also found that the public health orders didn’t direct employers on what the employment consequences would be for non-compliance, they merely restricted workplace eligibility. The health employers made their own decisions on whether to place non-compliant nurses on unpaid leave or to terminate their employment, said the arbitrator.
The arbitrator determined that the charter didn’t apply to the actions of the seven health employers in question. Charter-based claims within the grievances were dismissed, although the BCNU retained the right to pursue the remaining issues under the collective agreement in subsequent proceedings.
“In the healthcare sector it's a gray zone, because in some ways, they're publicly funded - I can see why [the BCNU] tried to make the push,” says Samuels. “But I think it's in the context of every other COVID vaccination rule being upheld that this was just another avenue to try and make some headway - this was a hot topic in healthcare, and for nurses to lose their employment, I appreciate they're trying to do everything they can to find a way around that.”
Other public employers such as public schools could have a similar issue, but Eldridge established what to look for in determining if something is government or not, according to Samuels.
“Eldridge hasn't changed and an arbitrator’s not going to overturn that,” she says. “Just because the HEABC had to implement a government's responsibility with respect to healthcare, it doesn't turn them into the government or the body that issues the orders that others have to follow.”
