Fraser Health Authority (Peace Arch Hospital) (Re)

A health care worker terminated for refusing the COVID-19 vaccine argued the union abandoned her grievance arbitrarily. The BCLRB found the union had reviewed the case, monitored developing arbitral jurisprudence, held the grievance in abeyance pending related outcomes, and reached a reasoned conclusion — meeting the duty of fair representation standard.

Background

The applicant, Kerri Lynn Schmidt, was employed by Fraser Health Authority (Peace Arch Hospital) until November 2021, when her employment was terminated for failing to comply with the Provincial Health Officer’s COVID-19 vaccination order requiring all health sector employees to be fully vaccinated. The applicant had claimed both a sincerely held religious belief and a personal family creed against vaccination. She relied on statements by the Employer about possible religious and medical exemptions, which she believed created a binding obligation that her employment would not be affected.

The Hospital Employees’ Union filed a grievance on her behalf. Over the following years, the Union monitored the developing arbitral case law, held the grievance in abeyance pending related Board proceedings, and ultimately concluded — after reviewing multiple decisions and seeking legal advice — that it would not succeed at arbitration. The Union advised the applicant it was withdrawing the grievance in early 2024, though the grievance was formally considered resolved as part of a Letter of Understanding negotiated in September 2024 addressing reinstatement for employees rehired after the vaccine mandate was lifted. The applicant was not rehired.

Having exhausted the Union’s internal appeal process, the applicant brought a duty of fair representation complaint under section 12 of the Labour Relations Code (the “Code”).

Issue

Did the Union breach its duty of fair representation by acting in an arbitrary, discriminatory, or bad faith manner in its handling of the applicant’s termination grievance?

Decision

Vice-Chair Sutcliffe dismissed the application, finding no apparent contravention of section 12 of the Code.

On arbitrariness: the materials provided by the Applicant demonstrated that the Union reviewed the specifics of the grievance, held it in abeyance pending related outcomes, indicated that additional information about the applicant’s religious beliefs might be required, and monitored and evaluated related arbitration and Board decisions before reaching a reasoned conclusion. This was not arbitrary representation.

On discrimination: the applicant’s allegation related principally to the Employer having acted in a discriminatory fashion in relation to her vaccination status. While there was one reference in an email to the Union to an allegation that the Union’s decision not to accommodate the applicant’s sincerely held religious beliefs  there were otherwise no particularized details or evidence provided by the applicant to support that the Union represented the applicant in a discriminatory manner due to the applicant’s religious beliefs. Section 12 concerns whether the Union represented the applicant in a discriminatory manner — not whether the Employer’s conduct was discriminatory. No particulars supported a finding that the Union discriminated against the applicant in the exercise of its representation.

On bad faith: the applicant did not articulate any improper purpose or intent to deceive by the Union. A disagreement with the Union’s strategic decision — even a strongly felt one — does not establish bad faith.

The Vice-Chair emphasized the well-established principle that the section 12 standard is not determined by whether an applicant disagrees with the Union’s decision or believes the Union made the wrong call. The focus is on the manner of representation, not the outcome.

Citation: 2026 BCLRB 28