Judge drops attorney general from lawsuit related to COVID vaccination status

A Nova Scotia provincial court judge who filed a lawsuit against the province and another judge for $5 million over a dispute related to COVID-19 vaccination status has since dropped her case against the province’s attorney general.

News about the lawsuit was first reported in allnovascotia.com. On Sept. 28, lawyer James Manson filed a notice of action on behalf of Justice Rickola Brinton that names Justice Pamela Williams, the office of the chief judge of the provincial court of Nova Scotia, the court of Nova Scotia, and the attorney general of Nova Scotia as defendents.

On Oct. 20, a notice of discontinuance was filed by Manson, Brinton’s lawyer, discontinuing the case only against the attorney general. The case will continue against the other defendents, who haven’t filed a defence. Brinton’s claims have not been tested in court.

The statement of claim details months of disputes over Brinton’s vaccination status and her work responsibilities.

The events started with an email from Williams to all the court judges on Sept. 29, 2021, in which she wrote that the Nova Scotia bar asked them about their COVID vaccination status. Williams asked the judges if they would share their status with each other, and then the bar, in a private letter.

According to the statement, several judges agreed they’d share their vaccination status, but two judges hesitated. That included one judge who said some may have concerns about medical privacy, adding “he had less sympathy for judges who were unvaccinated for other reasons,” the statement said.

On Oct. 1, 2021, Brinton responded to the group with this message in which she expressed her concerns about medical privacy:

I also know that the vaccination mandates and passports may be disproportionately impacting racialized communities. And as an essential service, we will be creating a two-tiered society for those who already feel as though we are not free to serve them.

Another judge responded to Brinton’s comment with this: “Either we all volunteerly declare we are vaccinated, or the Chief should use her powers and order that all the [Provincial Court] judges be vaccinated.”

On Oct. 6, 2021, the province announced it would require that all government employees be vaccinated or they’d be put on leave. That policy, however, didn’t apply to provincial court judges.

The following day, according to the statement, Williams spoke with Brinton, trying to change her mind. But Brinton said “her position was a matter of conscience and a result of prayerful contemplation.”

“Brinton told Williams she felt compelled to speak up because she believe the Covid-19 vaccine question was a political issue causing division and that the Court should remain neutral,” the statement said.

Brinton offered to test often for COVID-19, but Williams rejected that offer because it wasn’t available to all staff. Williams told Brinton the only option was for Brinton to “limit her work to presiding over arraignment court from home if the other judges agreed to take on the trials assigned to her.”

“Brinton was willing to co-operate, but shared Williams’ doubt that the other judges would agree to such an arrangement,” the statement said.

Williams told Brinton she’d have to find another solution, if that arrangement couldn’t be made.

Brinton told Williams it was challenging to speak openly about the issue. The statement of claim said that Williams agreed not to suspend Brinton or refer her to the Nova Scotia Judicial Council, which manages the conduct of judges. Williams also didn’t tell Brinton she would implement a vaccination policy at any time either.

On Nov. 1, Williams sent out an email to all judges that said “only fully vaccinated judges will be assigned to sit in our courtrooms for the foreseeable future.”

Williams said she wouldn’t make a public statement about the policy, but said judges should advise staff, lawyers, and members of the public that judges are fully vaccinated. The email didn’t explain how Williams had the authority to make such a policy.

Later in the month, though, on Nov. 25, Williams did make a public statement saying all “Provincial Court judges presiding in courtrooms, both now and in the future, are fully vaccinated.”

But before that, at the end of October, Brinton’s husband tested positive for COVID, and Brinton and the rest of her family soon tested positive as well. Brinton started a 10-day quarantine on Oct. 25.

‘Overwhelming exhaustion and anxiety’

After that quarantine was done, the statement of claim said Brinton was suffering from “overwhelming exhaustion and anxiety rising from Williams’s actions.” Brinton went to her doctor and explained the source of her anxiety was work emails. Her doctor ordered Brinton to take four weeks off work, and to avoid reading work emails.

On Nov. 15, Brinton submitted a proof of illness form signed by her doctor to fulfill requirements of “evidence of disability.” During those four weeks, Brinton kept in touch with her contact at her insurance company, updating her on her medical status.

On Dec. 15, while Brinton was still off work, Williams sent an email in which she said the other judges were unwilling to take on Brinton’s scheduled trials.

“They are of the view that a judge must perform all aspects of the work, including trials. I agree with them,” Williams wrote in the email.

Two days later, Brinton sent in another proof of illness note saying she needed to take another four to six weeks off work. In February 2022, Williams said she wouldn’t fulfill that request because Brinton didn’t submit an “evidence of disability.” Williams also said Brinton’s previous proof of illness didn’t include enough information regarding her illness.

In that email, Williams again brought up the issue of Brinton’s vaccination status, writing, in part:

If you choose not to disclose your vaccination status, you will be considered non-vaccinated and unable to preside over in-person trial and sentencing in the Court Room, which is a large part of the daily function of a Provincial Court Judge. Regrettably, I will have no recourse other than to suspend you and refer the matter to Judicial Council.

According to the statement, this was the first time that Brinton learned she could be suspended or face the judical council. Brinton responded to the email saying she’d be applying for long-term disability. Her doctor signed forms saying Brinton would be off until at least May 16, 2022.

Brinton’s application for long-term disability was approved in April 2022, however, prior to that, in March, Williams contacted Brinton’s doctor without her consent asking for details of Brinton’s illness. After phone calls with Brinton, her doctor didn’t provide those records.

According to the statement, Brinton and Williams haven’t communicated since April 2022, when Brinton’s long-term disability was approved by her insurer.

Brinton alleges that William’s behaviour violates the principles of judicial independence, judicial impartiality, Brinton’s Charter rights, and her medical privacy.

Brinton is seeking $5 million in damages, as well as declarations that Williams invaded Brinton’s Charter rights and medical privacy.

The statements allege that because of Williams’s actions, Brinton suffered “emotional and mental damages,” a “significant loss of reputation,” and a “total loss of faith in the judicial system.”

Brinton, 48, was appointed to the provincial court on March 31, 2017. She previously worked as a managing lawyer with Nova Scotia Legal Aid’s Youth Office in Halifax.