Kadian Parkins v Cari-Med Group Ltd

• Jurisdiction: Jamaica
• Judge: Wint-Blair, J
• Judgment Date: 10 December 2021
• Docket Number: CLAIM NO. SU 2021 CV 04366
• Court: Supreme Court (Jamaica)

[2021] JMSC Civ 183

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU 2021 CV 04366

Between:

Kadian Parkins

1 ^ST Claimant

and

Tashana Davis

2 ^ND Claimant

and

Sherine Hemmings

3 ^RD Claimant

and

Racquel Robertson

4 ^TH Claimant

and

Kennesha Dale

5 ^TH Claimant

and

Cari-Med Group Limited

1 ^ST Defendant

and

Kirk-FP Limited

2 ^ND Defendant

IN CHAMBERS

Messrs. Jerome Spencer, Mark Ramsay and Yakum Fitz-Henley instructed by Ramsay Smith, Attorneys-at-law for the Claimants

Messrs. Gavin Goffe, Matthew Royal and Jahmar Clarke instructed by Myers, Fletcher & Gordon, Attorneys-at-law for the Defendants

Injunction - Constitutional claim - COVID-19 vaccine policy - claimants are employees of defendants — whether Polymerase Chain Reaction (PCR) testing breaches contract of employment — whether breach of constitutional rights under Charter of Fundamental Rights and Freedoms — whether court should exercise or decline jurisdiction under section 19 of the Charter of Fundamental Rights and Freedoms — whether law of contract can provide an adequate alternate remedy — whether Charter rights are of horizontal application — Civil Procedure Rules — Rule 26.1(1)(k), sections 13 and 19 of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011.

Wint-Blair, J

What then where there is no direct precedent and no helpful analogy? As even Lord Esher accepted, judges have often to consider what or whether a common law rule applies to a particular, perhaps novel situation. The common law tends to develop incrementally and cautiously, to that extent perhaps even experimentally in a scientific way. The process has been attractively compared by Professor Ronald Dworkin 1 with the production of a chain novel by a series of different novelists, each adding a chapter, with the task of achieving as much overall coherence as possible and, one might add, with the final chapters perhaps providing some generalised key to all that preceded. 2

INTRODUCTION

1 Judges determine the issues raised in the case before them on the evidence presented to the court by applying the substantive and procedural law. In this regard, having examined all of the evidence, law and submissions presented to the court, reference in this decision will be made only to that which has been used to determine the issues raised by this application. While the court is aware of the significance of the decision to the public, this decision is based solely upon what was presented to it by the parties and their attorneys-at-law. It is here that I will

acknowledge the invaluable assistance of all counsel appearing in this case and of Ms. Camenia Roberts and Ms. Tassja Mitchell, Judicial Clerks, in what is a novel claim involving the constitutional provisions of this nation and which is without precedent

BACKGROUND

2 The 1 ^st Defendant is a limited liability company duly incorporated under the laws of Jamaica.

3 The 2 ^nd Defendant is a subsidiary of the 1 ^st Defendant.

4 The Claimants are employees of the 2 ^nd Defendant.

5 On September 20, 2021, the 1 ^st Defendants issued a written COVID-19 Vaccination Policy (“the policy”) for all companies within its group of companies to be implemented on October 4, 2021. An addendum to the policy was issued on October 4, 2021 and took effect on that date. The policy requires, inter alia, that all employees present proof of vaccination from COVID-19 or such other diseases as may be designated by the 1 ^st Defendant by October 4, 2021 unless a reasonable accommodation is approved.

6 The policy further states that employees who fail to comply with its terms will be required to present a negative polymerase chain reaction test (“PCR test”) result every two (2) weeks or fourteen (14) calendar days at the employee's expense from a Ministry of Health and Wellness approved laboratory site for COVID-19 testing.

7 On October 19, 2021 the claimants initiated a claim against the defendants claiming a breach and/or anticipatory breach of their respective employment contracts and violation of their constitutional rights under sections 13(3)(a), (b),(g) and (j)(ii) and (iii) of the Constitution of Jamaica

8 This matter began as an application for an interim injunction. The court was later presented with a second application. The first, was a notice of application for injunctive relief filed on October 19, 2021 by the claimants. The second 3 application was filed by the defendants and was a notice of application for the court to decline to grant constitutional redress pursuant to section 19(4) of the Constitution; and to exclude from determination issues involving breaches of the Constitution and in the alternative to strike out the declarations sought in the claim 4 pursuant to the Charter of Fundamental Rights and Freedoms, (Constitutional Amendment) Act, 2011, (“the Charter”).

JUDGE-DRIVEN CASE MANAGEMENT

9 In the exercise of its wide case management powers, the court, in furthering the overriding objective of dealing with cases justly; in the determination of the real issues to be tried and having regard to the nature of the issues raised, decided that the second application filed by the defendants was to be heard first as the outcome of that application would in the view of this court, shape the hearing of the first application for interim injunction. To this end, this decision on the application brought by the defendants is to be handed down first on the date fixed for hearing, thereafter the court will hear the application for injunctive relief.

10 This court is aware of the dicta of the Court of Appeal in Dawn Satterswaite v The Asset Recovery Agency 5 at paragraph 138 which sets out the powers of the single judge to deal with at an early stage questions relating to constitutional relief:

“[138] In the result, based on the guidance given in the authorities, it is very important for a party who perceives that a breach of their constitutional rights has occurred, or that questions have arisen in relation to their

constitutional rights, to decide how they wish to properly access the court, and to make such adjustments as are legally appropriate in the process through the courts. In any event, we share the view put forward by the Attorney General, that a court need not be constituted as a “Constitutional Court” and a claim need not come before the court, as an originating motion, for a judge of the Supreme Court to determine questions arising, which relate to a party's constitutional rights, as far as is applicable and necessary, in cases where the main relief sought is not constitutional redress.”

11 As a consequence of this court's procedural stance, orders were made for the filing of written submissions on the application with any further oral submissions in reply to be made at the hearing of the application.

THE DEFENDANTS' SUBMISSIONS

12 The gravamen of the defendants' submission is that there are alternative remedies which are available to the claimants and as a consequence, the court should decline to exercise its powers in regards to the constitutional claim.

13 The defendants' submit that the true nature of the alleged constitutional contravention from the claimant's point of view is that the defendants have violated their right to attend work and receive pay without complying with the defendants' written COVID-19 vaccination policy (“the policy”).

14 They submit that the remedies which the claimants' seek in respect of the claim are an injunction to restrain the enforcement of the policy and damages to compensate them for any loss which they may have suffered as a result of the implementation of that policy. An injunction and damages are both remedies that may be issued by the court on a claim for breach of contract if the court is satisfied that the claimants are so entitled. They argue that there is no authority which equates adequate remedy with desired remedy.

15 The defendants submit that the claimants have pleaded that the enforcement of the policy is a breach of their respective contracts of employment. In this regard, the adequate parallel remedy to prevent the further enforcement of the policy against the Claimants as well as to compensate them for any loss incurred from the prior enforcement of the policy are available in a claim for breach of contract. It therefore cannot be said that that the private law remedies are inadequate in order to justify embarking on a constitutional claim.

16 Furthermore, the defendants argue that the policy does not mandate that the claimants are to be vaccinated against COVID-19 or any other disease and, that forcible injection of COVID-19 vaccines is not a potential result of the refusal to grant the injunctions sought by the claimants. Instead, they submit that the policy presents each employee with one of two alternatives; the employee may either take one of the vaccines which are available or present a negative polymerase chain reaction test (“PCR”) test result bi-weekly. The policy provides a graduated approach to addressing the issue of employees who refuse to take the vaccine without a medical exemption and it provides the employer with a discretion to suspend or terminate the unwilling employee in the limited circumstances specified by the policy.

17 The evidence of Petra-Ann Williams for the defendants indicates that employees who declined to take the vaccine have been permitted to attend work by reason of their compliance with the alternative requirement to submit PCR test results. She says that there is no evidence of an employee being sanctioned for employing this alternative.

18 It is for this reason that the defendants submit that there are no special features to justify the inclusion of a constitutional claim. It is their submission that the only risk of loss faced by the claimants is being required by the policy to take biweekly PCR tests at their own expense. As...