B.C. court explains difference between ‘Was it reasonable?’ and ‘Was it correct?’
The British Columbia Court of Appeal has overturned a labour arbitration award that found Purolator's COVID-19 vaccination policy unreasonable.
The court ruled on Jan. 9, 2026, that the arbitrator held Purolator to a standard of correctness in how it interpreted and applied competing public health and scientific evidence amidst the pandemic.
But this was unreasonable because he applied the wrong legal test.
COVID policy and grievances
Purolator's mandatory COVID-19 Safer Workplace Policy required all employees and owner-operators to attest to being fully vaccinated against COVID-19 by Jan. 10, 2022. The policy remained in place between Jan. 1, 2022, and May 1, 2023, but did not require booster shots or maintaining vaccination status after the initial deadline.
Between Dec. 23, 2021, and Jan. 31, 2022, Teamsters Local Union No. 31 filed several individual grievances and one group policy grievance challenging the reasonableness of the policy. After 23 days of hearings between September 2022 and September 2023, arbitrator Nicholas Glass concluded the policy was reasonable when implemented but became unreasonable as of June 30, 2022.
The arbitrator found that by late spring of 2022, "the overwhelming medical opinion" was "that a two-dose vaccination after 25 weeks was effectively useless to protect against Omicron infection." The arbitrator found the waning effect for two-dose vaccination was dramatic, dropping to an average effectiveness of nine percent after 25 weeks, ranging from 17 percent to zero depending on the vaccine.
Provincial health officer's order
Central to the dispute was the arbitrator's treatment of public health guidance from Bonnie Henry, provincial health officer (PHO) for British Columbia. In a Sept. 12, 2022 order, Henry stated that "unvaccinated people are more prone to carry SARS-CoV-2 compared with vaccinated people, can be infectious for a longer period of time, clear the infection more slowly, and are more likely to have symptoms which spread the virus than a vaccinated person."
The arbitrator dismissed this guidance as "an outlier" and "wholly inconsistent with the preponderance of material" he had reviewed. He concluded that "this isolated and contrarian message from the PHO does not constitute an adequate plank on which to salvage the employer's assertion that the SWP remained reasonable in the fall of 2022."
The arbitrator accepted that Purolator had relied on the Sept. 12, 2022 public health order in continuing to maintain the policy. Purolator sought judicial review, but the Supreme Court of British Columbia dismissed the petition on Jan. 30, 2025.
Appeal of decision on vaccine effectiveness
On appeal, Purolator contended that "by engaging in a determination of the 'correct' scientific conclusion, rather than the reasonableness of maintaining the policy, the arbitrator applied the wrong legal test." 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.
The Court of Appeal agreed. The court noted that the arbitrator had accepted a different approach earlier in his reasoning. When analyzing Henry's Feb. 16, 2022 order, the arbitrator found that "uncertainty and the precautionary principle still operated in favour of continuing the mandate as of February 16, 2022."
Justice Harris wrote: "On the one hand, the arbitrator accepts that uncertainty may ground an application of the precautionary principle. On the other, he does not apply that reasoning in the face of evidence from a public health authority demonstrating continuing uncertainty as late as September 2022, and into 2023."
The court found it unreasonable for the arbitrator to characterize the PHO as a "marginal dissenting voice." Justice Harris stated: "The PHO's opinion is not just any opinion. It is the considered opinion of a provincial health officer charged with onerous responsibilities to act in the public interest. Given the status and responsibility of a provincial health officer, their considered opinions cannot be dismissed as contrarian or as a marginal dissident view."
'No consensus’ on vax effectiveness
On the record, the court found, "there was no consensus about the effectiveness of vaccination." The September Order demonstrated "the absence of a clear consensus among the public health authorities about whether vaccination would be effective to prevent infection." The PHO continued to include identical wording in public health orders well into 2023.
The court also took issue with the arbitrator's response to the data. Justice Harris wrote: "It is by no means clear why an average of 9% effectiveness should be treated as either statistically insignificant or render vaccination effectively useless, such that an employer policy seeking to address that risk is rendered unreasonable."
The court found the arbitrator's conclusion that the precautionary principle did not apply was unreasonable. Justice Harris wrote: "If the evidence that a harm can be avoided is unproven or inconclusive, the precautionary principle is engaged, even if it does not carry much weight in the face of all relevant considerations."
The court stated that when assessing the reasonableness of workplace policies, "the question is not whether the employer's interpretation of scientific evidence was objectively correct, but whether the employer acted reasonably given the circumstances, including conflicting public health advice."
Justice Harris emphasized: "In that context, the relevant question is what steps are reasonable, not what steps can be objectively demonstrated to be correct."
The Court of Appeal allowed the appeal and set aside the arbitration award. The court remitted the grievance to a new arbitrator, noting that "given the nature of the deficiencies embedded in the Award, this is a suitable case for fresh eyes." Justices DeWitt-Van Oosten and Edelmann concurred.
