Lawyer to file legal challenge against Quebec vaccine mandate for healthcare workers

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MONTREAL – A Montreal-based lawyer plans to file a legal challenge to suspend Quebec’s broad COVID-19 vaccine mandate for all of its healthcare workers just days before the new directive goes into effect, a learned CTV News.

The government decree, announced in September, will go into effect on October 15 and will require all healthcare workers who are not fully vaccinated to be suspended without pay, whether or not they are in direct or indirect contact with patients. The decree applies to all workers, from nurses to cleaning staff.

Despite calls from some healthcare workers’ unions and opposition parties to extend the deadline over fears the healthcare system could cope, François Legault’s government has said it will not budge and that the deadline is still in effect. As of Thursday, there were still more than 27,000 workers who were not fully immunized.

Civil litigation lawyer Natalie Manole will file a safeguard order, also known as a provincial injunction, on Tuesday in the Superior Court of Quebec in Montreal in what would be the first legal challenge to the decree.

She asks the court to suspend the directive as a matter of urgency until a decision is rendered on the validity of the measure. She intends to argue in court that the tenure of healthcare workers violates their rights and that the suspension of workers is against the public interest.

In an interview with CTV News on Saturday, Manole said that with thousands of workers still unvaccinated and unable to go to work on Oct. 15, “there is going to be complete chaos.”

“We have a lot of statements to support our case on how the health care system is going to suffer tremendously,” she said.

“Our position is that nothing was done in this decree to protect the rights of the public. So, to have access to care even if more than 20,000, caregivers will quit their jobs on Friday.

“So canceled surgeries, patients without a family doctor, people who just won’t be able to have breakfast the next day because the person who does the night shift won’t be there to make them breakfast.” . Just a lot of patients who won’t be treated [to]. “

Manole said she had been in contact with more than 100 healthcare workers concerned about the government directive and intended to argue that it violated constitutionally protected rights.

The government could impose less restrictive measures in health and social services settings by requiring routine COVID-19 tests for workers instead of making vaccination mandatory for these workers, according to Manole.

“[Testing] is certainly more in the public interest because the healthcare system will not be affected in the same way it will be affected by the departure of more than 20,000 healthcare workers on Friday, ”she said.

SIMILAR CASE TAKEN TO COURT IN 2009

It will be up to the government to justify whether the exceptional measure is reasonable and could turn to other cases where the courts have upheld employers’ decisions to suspend a worker for putting patients at risk by refusing a vaccine. A similar case occurred in Rimouski, Quebec. In 2008.

Micheline Bernier, a nursing assistant working in a long-term care home, was placed on unpaid leave of absence for 48 hours for refusing the flu shot during an epidemic among residents in January 2005.

Bernier filed a grievance with the union claiming his lost wages and the case went to arbitration. The arbitrator agreed with the employer’s decision, saying it was reasonable to put her on unpaid leave during an outbreak when she was informed of the care home’s policy.

Bernier lost an appeal from the Superior Court decision in 2009. Judge Gaétan Pelletier ruled that the employer respected his personal freedom not to be vaccinated and that withholding his salary “must be considered as an economic constraint and not as a violation of a fundamental principle. right provided for by the Charters.

Manole, however, said there are significant differences in this case and the mandate of the COVID-19 vaccine that will soon come into effect in Quebec. More particularly, she said, is the fact that the Rimouski case was limited to a single establishment and that the unpaid leave was limited to only 48 hours.

The key thing that sets the two cases apart, she noted, is that the decree is province-wide and affects thousands of workers and not a single nurse, as well as the uncertainty over the end. of the vaccination mandate.

OPPOSITION PARTIES WANT THE GOVERNMENT TO WAIT

Minister Dubé said on Wednesday that more details of the province’s emergency plan will be released next week. He has already announced an ambitious plan to spend $ 1 billion in premiums to bring more than 4,000 nurses back to the struggling health network.

But as time is running out, the Parti Québécois (PQ) has supported several unions in their calls for the government to wait to uphold the mandate of vaccines.

PQ MP Joël Arseneau said on Wednesday that the party was trying to protect the health care system.

“We stand up for the services,” he said. “We are saying that if the government has not achieved its goal of vaccinating 100% of the people working in the system, does that mean that the public, citizens, sick people will have to face the lack of services?”

The member for Quebec solidaire Vincent Marissal also wants to know what Quebec’s plan is after October 15.

“We still don’t have the real plan, what is Mr. Dubé’s real plan?” [breaks in services] all over the network. “

Meanwhile, Liberal Party leader Dominique Anglade said the Legault government had waited too long to announce mandatory vaccinations.

“For the moment, we feel that it is completely improvised. [In] In September, they said there would be no impact on services – we are seeing impacts as we speak, and we still haven’t seen a plan for October 15.


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