In 2021, courts across Canada adopted a variety of Covid-related policies in response to the pandemic. Within the Provincial Court of Nova Scotia, Chief Judge Pamela Williams sought to determine the Covid vaccination status of judges under her authority.
On September 29, 2021, Judge Rickcola Brinton received an email asking whether she would disclose her Covid vaccination status to other judges and to the Nova Scotia Barristers’ Society.
Judge Brinton believed that requiring judges to disclose private medical information raised important concerns about privacy, equality, and judicial independence.
Medical privacy concerns led Judge Brinton to refuse disclosure
Three days after receiving the request, Judge Brinton responded that she would not disclose her vaccination status.
“I realize I may be in the minority…as I have concerns with medical privacy,” she wrote. “I also know that the vaccination mandates and passports may be disproportionately impacting racialized communities. And as an essential service, will we be creating a two-tiered society for those who already feel as though we are not all free to serve them?”
On October 7, 2021, Chief Judge Williams met with Judge Brinton in an effort to persuade her to disclose her vaccination status. Judge Brinton explained that protecting her medical privacy was a matter of conscience and religious conviction. She offered to undergo regular Covid testing instead of disclosing her vaccination status, but that proposal was rejected.
Later that month, Judge Brinton went on short-term disability leave for unrelated medical reasons and submitted the required medical documentation.
Refusal to disclose vaccination status led to the threat of discipline
On November 21, 2021, Chief Judge Williams informed judges that only fully vaccinated judges would be assigned to sit in courtrooms. Four days later, she publicly stated that all Provincial Court judges presiding in courtrooms were fully vaccinated.
On February 22, 2022, Chief Judge Williams advised Judge Brinton that if she continued to refuse to disclose her Covid vaccination status, she would be treated as unvaccinated, prevented from presiding over in-person proceedings, and could face suspension and referral to the Judicial Council.
The following month, Chief Judge Williams sought additional medical information directly from Judge Brinton’s physician, including details of her medical condition and vaccination status. On both occasions that the physician was contacted, Judge Brinton declined to authorize the disclosure of her private medical information.
Judge Brinton had already qualified for long-term disability benefits and had provided the necessary medical information to her benefits provider.
The dispute raised concerns about privacy and judicial independence
Judge Brinton believed that requiring judges to disclose confidential medical information compromised both personal privacy and the independence of the judiciary.
Judicial independence is a longstanding constitutional principle that predates the Canadian Charter of Rights and Freedoms. Judge Brinton argued that judges must remain independent and impartial, particularly when courts are asked to decide disputes involving Covid vaccination policies, vaccine mandates, or other government public health measures.
She also argued that threatening judges with suspension or discipline for refusing to disclose private medical information undermined those constitutional principles.
Judge Brinton’s lawsuit named as defendants the Honourable Pamela S. Williams, the Office of the Chief Judge of the Provincial Court of Nova Scotia, the Provincial Court of Nova Scotia, and the Attorney General of Nova Scotia representing His Majesty the King in Right of the Province of Nova Scotia.
The matter is no longer being pursued
Following these events, Judge Brinton received no further communications from Chief Judge Williams after April 2022. Chief Judge Williams’ term as Chief Judge concluded in August 2023, although she continued to sit on the Provincial Court.