4 N.B. government employees in court challenging vaccination rule

A teacher, a nurse, a health network administration assistant and an educational support teacher are suing New Brunswick over what they claim is an unconstitutional vaccine mandate, and the province wants the suit dismissed.

The four employees sued the province in November after it made it mandatory for all employees to get vaccinated or face unpaid leave. The deadline was Nov. 19, when the province said just under 2,000 of its 66,000 employees, or just under three per cent, were not fully vaccinated against COVID-19 and would be placed on leave.

Stuart Murray has been an educational support teacher at Anglophone East School District for about four years. Trista Michaud-Hachey is a teacher at Oromocto High School who worked for the province for 18 years. Tabatha Belding has been a registered nurse at the Dr. Everett Chalmers Regional Hospital in Fredericton for six years, and Lisa Gorham has worked for the province for 22 years and is an executive assistant at Horizon Health Network.

They are all on unpaid leave, the court heard Wednesday, and haven't resigned or been dismissed. 

All four allege the province is contravening their right to life, liberty and security of the person by requiring proof of vaccination to allow them to work. They're asking to be reinstated with payment of lost wages or pay in lieu of lost wages. They're also asking the judge to make a declaration that the policy is unconstitutional.

The province's lawyer, Justin Wies, made arguments on why the lawsuit should be dismissed Wednesday. He said the  issue should first be dealt with by the New Brunswick Labour and Employment Board because that's what the law requires.

Wies said if the employees are not happy with the decision from the board, they can then go to court and ask for a judicial review.

"The framing of the issue as a constitutional challenge doesn't [preclude] them from having to go through labour board," Wies said.

James Kitchen, the lawyer for the employees, said this is not exclusively a labour case. The "most important" remedy they want is the declaration from the court that the policy is against the Constitution, he said.

"They're pursuing a larger interest more than workplace concerns," he said. "They're making this application on behalf of other employees."

On Wednesday, Justice Thomas Christie of the Court of Queen's Bench allowed the New Brunswick Nurses Union and the New Brunswick Teachers Federation to intervene on the case and make short arguments. 

Joël Michaud, who is representing both unions, made arguments supporting the province's stance. He said the unions believe this issue should be first dealt with in a labour arbitration before anything else.

He said if the courts allow the employees to skip the arbitration process then it would be "in essence usurping the role of the employee associations."

Christie said he is "sensitive" to the issues brought forward by the four employees, but he may be limited in what he can do by the law that requires only one forum to deal with labour issues.