Federal Court dismisses claim military vaccine mandate led to spiritual discrimination 

A soldier of the 41 Canadian Brigade Group carries ammunition for a C9 squad automatic weapon during training at CFB Suffield, Alta., Saturday, Oct. 19, 2024.THE CANADIAN PRESS/Jeff McIntosh

A Federal Court judge has thrown out a lawsuit filed by a former soldier who alleged spiritual discrimination and wrongful dismissal by the Canadian Armed Forces due to its COVID-19 vaccine mandate.

Liam Jarbeau had spent five years in the army when, in October 2021, the chief of the defence staff introduced the mandatory vaccination policy for all military members.

Jarbeau objected to the mandate, requesting an exemption based on his spiritual beliefs. The soldier’s exemption request was denied, prompting him to eventually file a grievance with the Canadian Forces.

Jarbeau left the military in March 2024, apparently before the grievance process was exhausted. One year later, he filed suit against the federal government, alleging the CAF had breached his Charter rights protecting him from spiritual discrimination.

He also accused the military of constructive dismissal, an illegal labour practice in which an employer fundamentally alters the terms of an employee’s job, such that the worker feels compelled to resign. Jarbeau further contended that undue delays in resolving his grievance denied him due process.

‘Significant harm’

Representing himself before the court, the former soldier told Justice William Pentney that he was denied training opportunities and promotions, and was given undesirable postings due to his unvaccinated status.

He argued this hobbled his military career and ultimately prevented him from signing on to complete his remaining 18 years of service because the CAF refused to acknowledge or guard against further mistreatment.

“The Canadian Armed Forces represent far more than just a career; it is an integral part of an individual’s identity,” Pentney wrote in a summary of Jarbeau’s statements to the court. “Therefore, the loss of this role, especially when imposed against his will, constitutes not just a career disruption, but a significant harm to his character and sense of self.”

The Attorney General of Canada moved to strike Jarbeau’s claims, arguing, in part, that he failed to identify a specific religious belief or practice that conflicted with the vaccine mandate.

“The plaintiff makes repeated references to his ‘spirituality’ but does not elaborate on the nature of his belief system or his adherence,” the judge wrote in his July 18 decision to strike the former soldier’s claims.

Jarbeau countered that the nature of his spirituality and its importance to him were detailed in his initial grievance with the military. But the judge stated that he could not consider any external evidence, including evidence within the grievance itself, while hearing the government’s motion.

“The plaintiff’s claim must stand or fall based on a generous reading of the pleading itself,” Pentney wrote. “He says that this is all explained in the affidavits he submitted, but I cannot have regard to those at this stage of the analysis. Reading the claim generously, and with a view to understanding the essence of what the plaintiff asserts, I find that he has failed to plead the necessary material facts to support a cause of action.”

The judge cautioned that his ruling didn’t question the sincerity of Jarbeau’s spiritual beliefs, saying any such finding was beyond the scope of the present hearing.

Crown not contractually bound to CAF members

Turning to the allegations of wrongful dismissal and denial of due process, the judge cited “abundant” legal precedent affirming that traditional labour law remedies do not extend to members of the Canadian Forces.

“The terms of service to which CAF members are subject are unique in some respects. They can be called to perform their duties at virtually any time, in any place, and even where doing their duty will place their lives at risk,” the judge wrote.

“As a matter of law, however, they serve ‘at pleasure,’” Pentney continued. “The Crown is in no way contractually bound to the members of the Armed Forces,” and anyone who joins the military is entering a one-sided commitment with no obligations for the Crown.

“As a CAF member, the plaintiff knew that he could be posted to different locations and given different assignments,” Pentney wrote. “The fact that he was subjected to temporary postings, even unfavourable ones, does not engage the type of security interests that Sec. 7 (of the Charter of Rights and Freedoms, protecting life, liberty and security of the person) is meant to protect.”

The judge further found no material basis to support the former soldier’s argument that administrative delays amounted to a denial of due process, finding instead that the claims brought to the court should have been pursued fully through the military’s internal grievance process.

“The record before me is incomplete as to the nature and scope of his grievance or its outcome, but there can be no doubt that he had taken the step to pursue a grievance,” the judge ruled. “There is also no doubt that the CAF grievance process was sufficiently broad in scope to deal with all aspects of the plaintiff’s claims.”

The attorney general sought an order on the reimbursement of its costs in the case, but the judge denied the request, finding the former soldier “pursued his claim in good faith and should not bear the additional costs of this motion.”

“Each party shall bear their own costs,” Pentney concluded.