Case In Point
BCCA Upholds Mandatory COVID-19 Vaccination Policy Where Employer Relied on Provincial Health Officer’s Opinion
Date: February 23, 2026
In Purolator Canada Inc. v. Canada Council of Teamsters, the British Columbia Court of Appeal (BCCA) reversed a decision of the British Columbia Supreme Court that upheld a labour arbitration grievance award (Award). The Award found that Purolator’s imposition of a mandatory COVID-19 vaccination policy (Policy) on its unionized workforce was unreasonable as of June 30, 2022.
Prior to the appeal and after being upheld initially by the British Columbia Supreme Court (BCSC), the Award was relied upon extensively to support challenges to COVID policies across Canada. On appeal, the BCCA held that the Award was unreasonable, set it aside, and remitted the grievance to a new arbitrator.
Background
Purolator introduced the Policy on September 15, 2021. It established that employees who did not attest to being fully vaccinated as of January 10, 2022, with two doses of a Health Canada approved COVID-19 vaccine would be placed on an unpaid leave of absence. The Policy remained in place between January 1, 2022 and May 1, 2023.
The Provincial Health Officer (PHO) issued orders dated January 20, 2022, February 16, 2022, and September 12, 2022 (September Order), stating that vaccination continued to protect against infection.
The Canada Council of Teamsters (Council) holds bargaining rights for the employees and owner/operators of Purolator. The Council has constituent Local unions, including the Teamsters Local Union No. 31 (Local 31).
Between December 23, 2021 and January 31, 2022, Local 31 filed several individual grievances and one group policy grievance challenging the reasonableness of the Policy in British Columbia.
Arbitration Award
In September 2022, proceedings commenced before Arbitrator Nicholas Glass (Arbitrator) to determine the grievances challenging the reasonableness of the Policy.
Arbitrator Glass found the Policy reasonable from January 2022 until the end of June 2022, but unreasonable as of June 30, 2022. Notably, he engaged in his own analysis of the medical evidence to assess what he believed to be the “correct” scientific facts and relied on them to determine whether the Policy was reasonable.
The Arbitrator concluded that by the spring of 2022, sufficient data had become available to “incontestably” conclude that the two-dose vaccination had an average effectiveness of 9% after 25 weeks of receiving the vaccination. The Arbitrator reasoned that because vaccination provided “statistically insignificant protection” against infection after June 2022, the precautionary principle, which is engaged when it is uncertain whether certain risks will materialize in the future, and justifies taking steps to prevent them materializing, had become inapplicable.
In the Arbitrator’s view, Purolator could no longer establish that vaccination could prevent or reduce the risk of infection in its workplace; the Policy had become unreasonable as of June 30, 2022, under the approach taken by labour arbitrators to the balancing of interests upon the unilateral imposition of a mandatory workplace policy, set out in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson) [KVP], and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (the KVP/Irving test).
Significantly, Arbitrator Glass accepted that when Purolator continued the Policy after June 2022, it relied on the PHO’s orders, especially the September Order, which stated in its preamble that, “People who are unvaccinated are at greater risk to other people than vaccinated people.” However, he discounted the September Order characterizing it as “entirely contrary to the overwhelming prevailing medical opinion which had crystallized no later than the spring of 2022,” an “outlier,” and “an isolated and contrarian message.”
BCSC Decision
The BCSC upheld the Award on judicial review.
The court found the Award was reasonable because the Arbitrator was entitled to conclude that, based on the information that was available to Purolator, Purolator should have concluded that the Policy was unreasonable after June 2022. In the BCSC’s view, the precautionary principle did not apply to justify Purolator’s decision to continue the Policy after June 2022.
BCCA Decision
The BCCA reversed the BCSC’s decision on appeal, set the Award aside, and remitted the grievance to a new arbitrator.
The Court held that the Award was unreasonable under the KVP/Irving test, and the administrative law framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov).
KVP/Irving Test
The BCCA held that it was reasonable for Purolator to continue the Policy given the uncertainty and conflicting advice.
The Court observed that the KVP test requires, among other things, that when an employer unilaterally imposes a mandatory workplace policy it must “not be unreasonable;” and that to determine whether a policy is reasonable, a balancing of interests is required under Irving, including the nature of the employer’s interests, any less intrusive means available to address the employer’s concerns, and the policy impact on employees’ interests. Together, this approach is referred to in the BCCA’s decision as the KVP/Irving test.
The BCCA found the Award unreasonable because the Arbitrator inappropriately applied the “correctness standard” to the determination of whether the Policy was reasonable. When the Arbitrator concluded that the Policy did not align with his factual conclusions on the effectiveness of vaccination after June 2022, he decided that Purolator’s decision to maintain it as of June 30, 2022, was unreasonable.
The BCCA reasoned that the precautionary principle was engaged because there was uncertainty about whether vaccination protected against infection and, accordingly, Purolator was justified in continuing to impose the Policy. The Court emphasized that in the Award, the Arbitrator expressed his own acceptance of the reasonableness of an employer relying on advice from public health authorities when there is uncertainty about whether vaccination protects against infection. Accordingly, based on the Arbitrator’s own analysis, Purolator was not required to be “correct” about whether the Policy was effective to protect against infection.
The Court also noted that in other parts of the Award the Arbitrator’s approach changed: he found that by the spring of 2022, the prevailing public authority opinion was that there was no longer any scientific uncertainty about the effectiveness of vaccines. In the BCCA’s view, this reflected the Arbitrator’s own finding about the effectiveness of vaccination, “in substitution for the finding of at least one significant PHO to the contrary” (i.e., the September Order). The Court found that the Arbitrator unreasonably characterized the PHO’s finding that scientific uncertainty continued in September 2022 as a “marginal dissenting voice.” It observed that, in fact, the September Order demonstrated that there was no clear consensus among the public health authorities, and disagreed with the Arbitrator’s finding that it was “incontrovertible” that there was no scientific uncertainty.
The BCCA also underscored the high status of a PHO’s opinion and objected to the Arbitrator’s dismissal of it as contrarian or a marginal dissident view:
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.
…
What is important about the September Order is the reasonableness of the employer relying on it as a considered opinion of a responsible public officer.
The BCCA reasoned that, based on the Arbitrator’s own analysis, he should have been asking whether it was reasonable for Purolator to continue imposing the Policy when public health authorities were issuing contradictory advice. The Court concluded that the Award was unreasonable because the Arbitrator inappropriately imposed the “correctness standard” on the question by requiring Purolator to be correct rather than act reasonably. The BCCA emphasized that the implementation of a policy does not need to be “objectively reasonable,” and that an employer could establish the reasonableness of a policy by demonstrating that it relied on a contrary opinion.
Vavilov Framework
The BCCA noted that the administrative law framework established in Vavilov, provides that an administrative decision is unreasonable if there is a failure of rationality internal to the reasoning process, and a failure of justification given the legal and factual constraints bearing on the decision.
The Court found that there was “an internal incoherence or failure of rationality” in the reasoning of the Arbitrator that undermined confidence in the Award. The Arbitrator’s dependence on “an unreasonable premise” was highlighted by the BCCA when it shared a number of examples, including the following:
(a) had the Arbitrator taken a rational approach, he would have accepted that there was continuing uncertainty and, engaging the precautionary principle, he would have asked whether what Purolator did was reasonable in the circumstances;
(b) the Arbitrator failed to explain what he meant by “statistical insignificance” or why an average 9% effectiveness rendered vaccination “effectively useless.” A rational analysis required an explanation as to why that degree of effectiveness did not render the [Policy] reasonable on its own terms under the KVP/Irving test; and
(c) subjecting studies indicating a potential problem to “a searching level of scrutiny” holds an employer to a “correctness standard” in its decision‑making process; the question should be whether the employer acted reasonably.
Takeaways
The BCCA decision undermines the impact of the original Award and offers support for employers who may be facing challenges to their own mandatory vaccination policies, or any other mandatory workplace policy they may unilaterally impose on their employees to protect against the materialization of uncertain risks.
The decision affirms that employers are not required to engage in a determination of the “correct” conclusion when imposing such policies or demonstrate that the policy is “objectively reasonable.” Rather, employers must act “reasonably” when imposing them.
Additionally, where employers are considering policies in the face of uncertainties and risks to employees, it is appropriate for employers to take a precautionary approach, particularly in the absence of clear consensus about the nature of risks involved.
For assistance with preparing and implementing workplace policies, consult a Hicks Morley lawyer.
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