Court Strikes Down Vaccination Mandate in New Zealand

On February 25, 2022, the High Court of New Zealand struck down the Government’s mandatory vaccination requirements for Police and Defence Force employees. This occurred mere weeks after the highest court in the United States struck down the Federal Government’s mandatory vaccination requirement for large companies.

As of April 18, 2022, the Supreme Court of Canada has not heard an appeal of any mandatory vaccination requirements, however, as the Supreme Court of Canada often follows the lead of the United States and the United Kingdom, it is anticipated that the mandatory vaccination requirements will be struck.

Background

In Yardley v Minister for Workplace Relations and Safety, 2022 NZHC 291, the Government of New Zealand implemented a COVID-19 vaccine mandate (“Mandate”) which required all of its Police and Defence Force personnel to be vaccinated by March 1, 2022, otherwise, they would be terminated from their employment.

The Mandate was objected to and challenged by three Police and Defence Force employees, with affidavits submitted by 37 affected employees. The employees sought an urgent interim order. The request for an urgent interim order was considered by Justice Cull of the lower court on January 12, 2022. Justice Cull denied the employees’ request for an interim order on the basis that the affected employees had not been terminated.

The Police and Defence Force employees brought an application to the High Court of New Zealand for judicial review of Justice Cull’s decision. The High Court of New Zealand granted the employees’ application and struck down the vaccination mandate on the basis that, among other things, was in violation of the New Zealand Bill of Rights.

Mandatory vaccination requirements decision

Unjustified Limitation on the New Zealand Bill of Rights

The affected employees claimed that the Mandate was an unjustified limitation on the right to refuse to undergo medical treatment, right to manifest religion, right to be free from discrimination and other rights recognized by the Bill of Rights, including the right to work, and of minority groups to enjoy their culture and practice of religion.

The High Court of New Zealand found that the Mandate was a limitation on the employees’ rights under the Bill of Rights to refuse to undergo medical treatment and right to manifest religion for those who decline to be vaccinated because the “vaccine has been tested on cells derived from human fetuses which is contrary to their religious beliefs”. The High Court held as follows:

“I accept…that an obligation to receive a vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief in “observance, practice, or teaching” of religion contemplated by s 15.”

However, the High Court declined to find that the Mandate was a limitation on the employees’ right to be free from discrimination, right to work, and any other rights under the Bill of Rights, and held as follows:

“The Order does not impose differential treatment on its face — all affected are treated in the same way…Here there is no evidence, statistical or other kind, showing that a group is being disadvantaged because of a particular religious belief which they practice — here declining to be vaccinated because of the fact that the vaccine has been tested on cells derived from a human foetus…For there to be discrimination it needs to be shown that a group having a particular religious practice was differentially treated, and in a way that has caused disadvantage. That has not been demonstrated.”

The High Court then addressed whether the limitation on the employees’ right to refuse to undergo medical treatment and right to manifest religion under the Bill of Rights were nevertheless demonstrably justified. The High Court found that the limitation was not demonstrably justified.

In reaching this conclusion, the High Court looked at how many employees were actually affected by the Mandate, whether these employees would nevertheless have been subject to any internal vaccine mandates and the risk to the Police and Defence Force’s ability to provide services given the number of employees affected.

The High Court found that only 164 Police and 115 Defence Force employees out of 15,000 employees were affected by the Mandate, and that this number was so low as to not be a demonstrably justified reason to limit the employee’s rights under the Bill of Rights.

The High Court found that the presence of the 164 unvaccinated individuals at the workplace did not present a serious health risk, such that it would justify the limit on the employees’ rights. The High Court held as follows:

“It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wains after the second dose, and seems to wain in a similar way after the booster.”

“…I am not satisfied that there is a real threat to the continuity of these essential services that the [Mandate] materially addresses. If there is a threat to these services it will arise precisely because vaccination and other measures are not able to prevent the risk that Omicron will sweep through workforces.”

Accordingly, the High Court found that the limitation on the employees’ rights under the Bill of Rights was not demonstrably justified and struck down the Mandate.

Mandatory vaccination takeaway

This recent New Zealand decision is very similar to the U.S. Supreme Court’s decision regarding mandatory vaccine requirements imposed by the Federal Government. As indicated above, the Supreme Court of Canada has looked to decisions from other jurisdictions, such as the United States and the United Kingdom, when determining novel law. It therefore appears likely that the Supreme Court of Canada will follow the direction of New Zealand and the U.S. to find that a mandatory vaccination mandate is contrary to law.

How Minken Employment Lawyers Can Help

If you require legal advice on workplace vaccination policies and how to avoid liability, or whether your vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act or breaching Human Rights legislation, contact us today to speak with one of our experienced employment lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.

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Please note that this article is for informational purposes only and does not constitute legal advice.