In Qualizza v. Canada, 2024 FC 1801, released on Nov. 13, associate judge Catherine Coughlan held that the plaintiffs’ claims that the vaccination policy violated their Charter rights did not disclose a cause of action as they did not plead material facts to support the allegations.
“The pleadings do not disclose a reasonable cause of action, fail to plead material facts and use vexatious language throughout. Some of the assertions also constitute abuse of process,” the judge wrote, striking the pleading without leave to amend.
In 2021, the Canadian Armed Forces set out COVID-19 vaccination requirements in a series of directives, which mandated that all members of the CAF be fully vaccinated against COVID-19.
The directives did, however, include exemptions for individuals on the grounds of certified medical contraindications, religious grounds or other prohibited grounds of discrimination under the Canadian Human Rights Act.
The directives provided that failure to comply with the policy could lead to CAF members facing administrative and remedial measures, including release from the CAF.
In June 2023, the plaintiffs alleged that the vaccine requirements infringed their rights under the Canadian Charter of Rights and Freedoms. They sought damages of $1 million for each plaintiff and $350,000 for failure to comply with various statutes, regulations and administrative policies, as well as unspecified special damages.
They also made a range of allegations against a number of individuals, including senior leaders of the CAF.
The Crown argued that the pleading should be struck, arguing that it lacked the basic elements of a proper pleading and instead consisted of bald allegations unsupported by facts.
The Crown also argued that the pleading failed to plead sufficient facts to sustain Charter breaches and made unsupported allegations against the individually named defendants.
The plaintiffs argued that the pleading, when read holistically, disclosed a cause of action.
Associate Judge Coughlan noted that she had on two separate occasions invited counsel for the plaintiffs to address Canada’s submissions that the pleading failed to disclose a reasonable cause of action, but that counsel had not taken that opportunity.
With respect to the plaintiffs’ claim that the vaccine policy violated section 2(a) of the Charter, the judge noted that a claimant must show that she or he sincerely believes in a practice or belief that has a nexus with religion and that the impugned state conduct interferes in a non‑trivial manner with the claimant’s ability to act in accordance with that practice or belief.
The judge found that none of the plaintiffs pleaded material facts disclosing a cause of action under s.2(a) of the Charter, noting that 174 of the 330 plaintiffs had alleged that they applied for a religious exemption under the directives.
She noted that none of those who were denied religious accommodation identified a specific religious belief or practice in which they sincerely believe a religious belief was infringed or interfered with in a non-trivial manner.
The court held that that pleading did not disclose a cause of action under s.2(a) of the Charter.
The judge also held that the pleadings did not identify how the directives allegedly violated freedom of association guaranteed under s. 2(d) of the Charter, noting the pleading did not identify the specific activities at issue.
The plaintiffs had also argued that the vaccine policy breached their rights under s.7 of the Charter, which protects the life, liberty and security of a person.
Associate Judge Coughlan noted that while the bare allegations in the pleading suggested that s.7 might be engaged, material facts to support and particularize claims to establish a cause of action under s.7 had not been pleaded.
The judge also cited Lavergne-Poitras v. Canada (Attorney General), 2021 FC 1232, in which the Federal Court held that s.7 of the Charter is not infringed by vaccination mandates because the mandates are not contrary to the principles of fundamental justice.
The court similarly held that the pleadings did not disclose a cause of action under s. 8 or s.15 of the Charter based on a lack of material facts in the pleading.
The court noted that apart from the lack of material facts, the pleadings were also “replete with vexatious language.”
“For example, various COVID-19 vaccines are labelled an ‘experimental gene therapy’ and ‘biologics,’ without any basis for these statements established. The COVID-19 pandemic is also referred to as an ‘emergency,’ without any basis indicated for the use of the quotation marks,” the judge wrote.
She added that the pleadings also consisted of a number of bald assertions, such as a statement that some officers had committed acts that were “criminal in nature” in implementing the directives.
The judge held that this constituted an abuse of process.
The court struck the pleading in its entirety pursuant to Rule 221 of the Federal Court Rules and held that leave to amend should not be granted.
“The pervasive absence of material facts throughout the pleading is not a flaw that can be addressed by amendment,” the judge wrote.
Counsel for the parties were not immediately available for comment.
Counsel for the plaintiffs was Catherine Christensen of Valour Law.
Counsel for Canada was Barry Benkendorf of Justice Canada.
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