Exercising Precaution in Applying the Precautionary Principle: The BCCA Sets Aside Arbitration Award on COVID-19 Vaccination Policy
January 21, 2026
Tom Roper, K.C. and Jaime Hoopes of Roper Greyell LLP successfully represented the appellant in the recent decision Purolator Canada Inc v Canada Council of Teamsters, 2026 BCCA 3, where a unanimous Court of Appeal set aside an arbitrator’s conclusion that Purolator’s mandatory COVID-19 vaccination policy was unreasonable.
In reversing the B.C. Supreme Court’s decision upholding the arbitrator’s award, the Court reaffirmed that employer policy decisions must only be reasonable, not correct, in times of scientific uncertainty.
Background
On September 15, 2021, amid the height of the COVID-19 pandemic, Purolator Canada Inc (“Employer”) introduced a mandatory vaccination policy known as the COVID-19 Safer Work Policy (the “SWP”), which remained in effect from January 1, 2022 to May 1, 2023.
The SWP required all employees to attest to being fully vaccinated against COVID-19 by January 10, 2022. Employees who failed to do so were placed on an unpaid leave of absence.
In response to the SWP, between December 23, 2021 and January 31, 2022, the Canada Council of Teamsters (the “Union“), through its constituent locals, filed hundreds of grievances across Canada relating to the reasonableness of the SWP. In British Columbia, several of these proceedings commenced jointly before Arbitrator Nicholas Glass (the “Arbitrator”).
The Underlying Decisions
In a lengthy decision the Arbitrator upheld the B.C. grievances, concluding that the SWP was reasonable until approximately the late spring of 2022, at which time the prevailing medical opinion shifted and showed that a two-dose vaccination provided “effectively useless” protection against infection after 25 weeks.
On that basis, the Arbitrator concluded that scientific uncertainty no longer existed and that the precautionary principle – which applies where there is uncertainty about future risk – became inapplicable. Accordingly, the continued implementation of the SWP beyond June 2022 was deemed unreasonable as that term is understood under the well-known KVP test and the grievances were allowed (the “Award”).
Employees impacted by the SWP were awarded lost wages and benefits for the period following June 30, 2022 as a result of the Award.
The B.C. Supreme Court upheld the Award, denying the Employer’s petition for judicial review. In reaching his conclusion, Smith J. deferred to the Arbitrator’s conclusion that the Employer failed to show the SWP prevented or reduced workplace risk and therefore acted unreasonably.
The Appeal Decision
On appeal, the Court overturned the Award, finding that the Arbitrator improperly substituted his own assessment of the scientific evidence for that of the Employer. In substance, he required the Employer to adopt his view that vaccination was ineffective after June 2022 and discounted contrary public health evidence as marginal or outlying – imposing a correctness, rather than reasonableness standard required by KVP.
The Court noted that the arbitrator initially accepted the correct legal premise: the Employer did not need to be correct about whether the SWP was objectively effective at preventing infection. Where medical evidence was uncertain or conflicting, the precautionary principle applied, and continuing the SWP could be reasonable. However, the Arbitrator departed from this approach in concluding that by spring 2022, it had become incontrovertible that vaccination was ineffective at preventing infection and that scientific uncertainty no longer existed.
The Court found these conclusions unsupported by the evidentiary record and undermined their confidence in the Award. The record showed continuing scientific uncertainty into at least September 2022 and no clear consensus among public health authorities that vaccination was “effectively useless”. As a result, the precautionary principle remained engaged.
The Court concluded that the Award was unreasonable on administrative law grounds. It set aside the Award and remitted the grievance to a new arbitrator, finding that “given the nature of the deficiencies embedded in the Award, this is a suitable case for fresh eyes”.
Takeaways
- When assessing a workplace policy under the KVP test, the question is whether the policy was reasonable, not whether it was correct.
- An arbitrator may not substitute their own interpretation of scientific evidence over that of the employer, as doing so improperly imposes a correctness standard.
- The precautionary principle applies where evidence about whether harm can be avoided is uncertain or inconclusive, including where medical or public health evidence is uncertain or conflicting.
- In such circumstances, an employer is entitled to rely on evidence of relevant public health authorities in taking steps to comply with its obligations to ensure the health and safety of its workers.
January 21, 2026
Tom Roper, K.C. and Jaime Hoopes of Roper Greyell LLP successfully represented the appellant in the recent decision Purolator Canada Inc v Canada Council of Teamsters, 2026 BCCA 3, where a unanimous Court of Appeal set aside an arbitrator’s conclusion that Purolator’s mandatory COVID-19 vaccination policy was unreasonable.
In reversing the B.C. Supreme Court’s decision upholding the arbitrator’s award, the Court reaffirmed that employer policy decisions must only be reasonable, not correct, in times of scientific uncertainty.
Background
On September 15, 2021, amid the height of the COVID-19 pandemic, Purolator Canada Inc (“Employer”) introduced a mandatory vaccination policy known as the COVID-19 Safer Work Policy (the “SWP”), which remained in effect from January 1, 2022 to May 1, 2023.
The SWP required all employees to attest to being fully vaccinated against COVID-19 by January 10, 2022. Employees who failed to do so were placed on an unpaid leave of absence.
In response to the SWP, between December 23, 2021 and January 31, 2022, the Canada Council of Teamsters (the “Union“), through its constituent locals, filed hundreds of grievances across Canada relating to the reasonableness of the SWP. In British Columbia, several of these proceedings commenced jointly before Arbitrator Nicholas Glass (the “Arbitrator”).
The Underlying Decisions
In a lengthy decision the Arbitrator upheld the B.C. grievances, concluding that the SWP was reasonable until approximately the late spring of 2022, at which time the prevailing medical opinion shifted and showed that a two-dose vaccination provided “effectively useless” protection against infection after 25 weeks.
On that basis, the Arbitrator concluded that scientific uncertainty no longer existed and that the precautionary principle – which applies where there is uncertainty about future risk – became inapplicable. Accordingly, the continued implementation of the SWP beyond June 2022 was deemed unreasonable as that term is understood under the well-known KVP test and the grievances were allowed (the “Award”).
Employees impacted by the SWP were awarded lost wages and benefits for the period following June 30, 2022 as a result of the Award.
The B.C. Supreme Court upheld the Award, denying the Employer’s petition for judicial review. In reaching his conclusion, Smith J. deferred to the Arbitrator’s conclusion that the Employer failed to show the SWP prevented or reduced workplace risk and therefore acted unreasonably.
The Appeal Decision
On appeal, the Court overturned the Award, finding that the Arbitrator improperly substituted his own assessment of the scientific evidence for that of the Employer. In substance, he required the Employer to adopt his view that vaccination was ineffective after June 2022 and discounted contrary public health evidence as marginal or outlying – imposing a correctness, rather than reasonableness standard required by KVP.
The Court noted that the arbitrator initially accepted the correct legal premise: the Employer did not need to be correct about whether the SWP was objectively effective at preventing infection. Where medical evidence was uncertain or conflicting, the precautionary principle applied, and continuing the SWP could be reasonable. However, the Arbitrator departed from this approach in concluding that by spring 2022, it had become incontrovertible that vaccination was ineffective at preventing infection and that scientific uncertainty no longer existed.
The Court found these conclusions unsupported by the evidentiary record and undermined their confidence in the Award. The record showed continuing scientific uncertainty into at least September 2022 and no clear consensus among public health authorities that vaccination was “effectively useless”. As a result, the precautionary principle remained engaged.
The Court concluded that the Award was unreasonable on administrative law grounds. It set aside the Award and remitted the grievance to a new arbitrator, finding that “given the nature of the deficiencies embedded in the Award, this is a suitable case for fresh eyes”.
Takeaways
- When assessing a workplace policy under the KVP test, the question is whether the policy was reasonable, not whether it was correct.
- An arbitrator may not substitute their own interpretation of scientific evidence over that of the employer, as doing so improperly imposes a correctness standard.
- The precautionary principle applies where evidence about whether harm can be avoided is uncertain or inconclusive, including where medical or public health evidence is uncertain or conflicting.
- In such circumstances, an employer is entitled to rely on evidence of relevant public health authorities in taking steps to comply with its obligations to ensure the health and safety of its workers.