By Barry W. Kwasniewski and Martin U. Wissmath

No ‘Irreparable Harm’ to Employees for COVID-19 Workplace Vaccination Policy: ONSC

Ontario’s Superior Court of Justice (“ONSC”) dissolved an injunction it had granted to University Health Network (“UHN”) employees to suspend the termination of their employment for non-compliance with a UHN mandatory vaccination policy. Justice Dunphy had granted the temporary injunction in Blake v University Health Network (“Blake”) on an October 22, 2021 motion for six days, and then dissolved the injunction in a preliminary hearing on October 28, 2021. The court ruled that the dispute between the employees, some of whom were unionized, and their employer, was not within the ONSC’s jurisdiction, but was within the ambit of the collective bargaining agreement, and should therefore be resolved as policy grievances in an arbitration process. Justice Dunphy (“Dunphy J”) stated that dissolving the injunction did not address “the question of the merits or legality of the vaccine policy adopted by the UHN.” However, Dunphy J held that without jurisdiction to decide the issue, the court could not maintain the injunction.

The court applied the tripartite test in RJR-MacDonald Inc. v Canada (Attorney General) to assess whether the injunction could be continued.

a. Is there a serious issue to be tried on the question of liability?

b. Is there a real potential for irreparable harm to ensue if relief is not granted? and

c. Does the balance of convenience favour the granting of relief at this early stage?

As the court did not have jurisdiction to examine the issue for those employees subject to the collective bargaining agreement, Dunphy J held that the plaintiffs failed to satisfy part a. of the test: where there is no jurisdiction, there is no serious issue to be tried. For the non-unionized employees, Dunphy J outlined the freedom to terminate the employment relationship, with or without cause, for private sector employers:

As a general rule, private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario. Where cause is not alleged, or if cause is alleged and not proved, compensation is payable to the employee. The level of compensation may be a function of a written contract, of statutory minimum standards or of the common law. Given that fundamental principle, it is hard to see how any plaintiff who is not in a union can allege irreparable harm arising from threatened termination of employment. If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money. Money, by definition is not only an adequate remedy it is the only remedy.

Consequently, non-unionized employees could not satisfy part b. of the RJR test for irreparable harm, according to Dunphy J. This rationale has already been cited as precedent in a November 13, 2021 Federal Court case, Lavergne-Poitras v Canada (Attorney General), 2021 FC 1232, in which the plaintiff also unsuccessfully sought an injunction to suspend the implementation of a federal government “COVID-19 vaccination requirement for supplier personnel.”

Some of the non-unionized plaintiffs in Blake alleged a violation of their rights under the Ontario Human Rights Code, but Dunphy J held that the evidentiary record did not yet establish “a serious issue to be tried that the impugned vaccine policy contravenes the anti-discrimination provisions of the Code as regards any of them”. That does not “preclude such proof being led at some later date,” but it was insufficient to justify the continuance of an injunction based “solely on that narrow speculative ground.”

Arbitrators decide both for and against reasonableness of workplace COVID-19 vaccination policies

Two recent labour arbitration awards in Ontario reached different conclusions on the reasonableness of employers’ COVID-19 workplace vaccination policies, demonstrating the significance of how a decision maker interprets and applies the relevant laws to the particular facts in each situation. In an award on November 9, 2021, United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd., Arbitrator F.R. von Veh dismissed United Food and Commercial Workers Union, Canada Local 333’s (“UFCW”) policy grievance and found that Paragon Protection Ltd.’s (“Paragon”) COVID-19 vaccination policy — including an exemption policy for accommodation under the Ontario Human Rights Code (the “Code”) — was “reasonable, enforceable and compliant” with the Code and Paragon’s obligations under the Occupational Health and Safety Act (the “OHSA”) (“UFCW and Paragon Award”). There was a different result in Electrical Safety Authority and Power Workers’ Union, a November 11, 2021 award (“ESA and PWU Award”), as Arbitrator John Stout decided that Electrical Safety Authority’s (“ESA”) mandatory COVID-19 vaccination policy was unreasonable “to the extent that employees may be disciplined or discharged for failing to get fully vaccinated.”

Paragon employs 4400 security guards at 450 client sites in Ontario, Arbitrator von Veh observed, and the majority of those clients have implemented their own vaccination policies that require contractors, such as Paragon’s security guards, to be fully vaccinated in order to work at their sites. Paragon’s policy fulfilled legal obligations under the Code and the OHSA, according to Arbitrator von Veh, who referred to the Ontario Human Rights Commission’s (“OHRC”) policy statement “on COVID-19 vaccine mandates and proof of vaccine certificates”, which states that “personal preferences” do not amount to a “creed” under the Code, and are therefore not protected as a ground for discrimination that requires accommodation by the employer. Given the “wealth of scientific information available on the pandemic and COVID-19”, Arbitrator von Veh found that “personal subjective perceptions of employees to be exempted from vaccinations cannot override or displace available scientific considerations.” As is common in collective bargaining, the collective agreement between Paragon and UFCW included a management rights clause, which allowed Paragon to “make, enforce and alter, from time to time, reasonable rules and regulations to be observed by employees.” The collective agreement also specifically included an article for employees to agree to receive “vaccination or inoculation” based on site-specific work requirements.

In the ESA and PWU Award, Arbitrator Stout’s decision turned on the reasonability of ESA’s exercising the management rights clause in the parties’ collective agreement. A significant difference from the UFCW and Paragon Award is the lack of any specific article in the collective agreement that addresses vaccinations. There is no “legislated requirement” for employees to be vaccinated, Arbitrator Stout noted, and no court decision or arbitration award that upholds a mandatory vaccination policy “without specific collective agreement language or legislative authority, outside of a healthcare or long-term care setting.” Arbitrator Stout distinguished his award from the UFCW and Paragon Award due to the absence of this specific language in the collective agreement. While high-risk workplaces, such as in healthcare or long-term care, may justify mandatory vaccinations for all employees,

However, in other workplace settings where employees can work remotely and there is no specific problem or significant risk related to an outbreak, infections, or significant interference with the employer’s operations, then a reasonable less intrusive alternative, such as the ESA’s voluntary vaccination disclosure and testing policy (VVD/T Policy) employed prior to October 5, 2021, may be adequate to address the risks.

Due to the fluid and evolving nature of the pandemic, however, “[w]hat may be unreasonable at one point in time is no longer unreasonable at a later point in time and vice versa.” Arbitrator Stout found that the “vast majority” of work by ESA employees could be effectively undertaken remotely “and many employees have a right to continue working remotely under the Collective Agreement.” Citing the Supreme Court of Canada’s decision in Machtinger v HOJ Industries, Arbitrator Stout viewed it unjust to discipline or discharge an employee for failing to be vaccinated “when it is not a requirement of being hired and where there is a reasonable alternative”. The Power Workers’ Union (“PWU”) grievance was allowed and the ESA directed to amend their vaccination policy “to make it clear that employees shall not be disciplined or discharged for failing to get vaccinated” and that a testing option should be provided for those who have not been vaccinated.

These two awards demonstrate the importance of the decision maker’s interpretation of laws, facts and the circumstances of the COVID-19 pandemic generally, in assessing the reasonability of a workplace COVID-19 vaccination policy. A significant difference in the two awards was the inclusion of specific article in the UFCW and Paragon collective agreement requiring employees to agree to a vaccination, whereas the ESA and PWU collective agreement did not include that language.

While these cases are interesting analyses of vaccination policies in unionized workplaces, it should be noted that a court of law is not required to follow arbitration awards because they are not binding. Therefore, there still remains much uncertainty about how the law will develop with regards to COVID-19 vaccination policies and charities and not-for-profits are encouraged to keep abreast of the latest developments.

Read the November 2021 Charity & NFP Law Update