Written on behalf of Peter McSherry
In a recent Ontario case that made headlines, a court first issued and then dissolved an interim injunction against the termination of hospital employees who had failed to comply with the employer’s mandatory COVID-19 vaccination policy.
Employer Adopts Mandatory COVID-19 Vaccination Policy
The employer, Toronto’s University Health Network, which is made up of a collection of hospitals and other healthcare facilities, had recently adopted an employment policy requiring all of its more than 17,000 employees to be fully vaccinated or face termination of their employment commencing October 22, 2021.
In response, on Friday, October 22, 2021, a group of its employees, some of whom were part of the union and some who were not, brought an urgent motion before the court. The urgent motion was for an interim injunction against the employer on behalf of the approximately 180 employees who were at risk of termination for their refusal to accept the COVID-19 vaccine.
In response, the employer argued that the court had no jurisdiction to issue an injunction for the unionized employees. It submitted that the unionized employees had to proceed through arbitration, not through the courts.
Court Issues Interim Injunction Against Employee Termination
Following the emergency hearing on October 22, 2021, and despite the employer’s jurisdictional objection, the court issued the injunction stating:
“I am satisfied that the status quo can be preserved without irreparable harm to any party until a proper hearing can take place on Thursday next. The harm raised by the [employees] is potentially serious and cannot be undone. It is alleged that some or all of them may be compelled to take the vaccine against their will because they cannot in their personal and family circumstances take the risk of being left destitute by the policy they are seeking to challenge.
It appears from the limited evidence before me that nothing material need happen before Thursday at all events. The affected employees are not scheduled to be working in the first few days of next week. What danger their presence at work might potentially have posed is not in issue because they will not be working anyway. All or most of them may have been scheduled to be formally terminated this afternoon.”
The court then issued several procedural orders relating to the subsequent hearing, which was scheduled for the following Thursday, October 28, 2021.
Court Asked to Issue Injunction At Subsequent Hearing
The subsequent hearing was held on October 28, 2021 and the court’s decision was issued the following day.
At the outset, the court set out the three-part test the employees had to meet in order for it to issue an injunction, as set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), namely:
- Is there a serious issue to be tried on the question of liability?
- Is there a real potential for irreparable harm to ensue if relief is not granted? and
- Does the balance of convenience favour the granting of relief at this early stage?
Court Examines Whether Unionized Employees Have Standing to Bring Claim
The first question the court addressed was whether the unionized employees had standing to seek relief with the court. The employer argued that the unionized employees had to resolve their dispute through arbitration.
The court then reviewed the principles regarding the question of “exclusive jurisdiction” as set out by the Supreme Court of Canada in Weber v. Ontario Hydro. One of the Weber principles asks the court to determine the “essential character” of the dispute in order to determine the proper jurisdiction for its resolution.
Court Determines Essential Character of Dispute
The court ultimately held that the essential character of the dispute before it went to the very core of the parties’ collective bargaining and relationship. The court found that because the employees’ claim called into question the employer’s right to enact and enforce its COVID-19 policy, the employer’s management rights as well as the parties’ bargained-for health and safety policies under the relevant collective agreements had to be given consideration and were fundamental to the dispute. In addition, the court observed:
“The claim disputes the right of the employer to terminate the employment of the affected employees. There are few aspects of a collective agreement more fundamental than establishing what does and does not constitute just cause for the discipline or termination of employment of an employee subject to it. The very foundation of the dispute depends on the existence of the collective agreements since … there is simply no general right to interfere with the decision of an employer to terminate the employment of an employee with or without cause.”
Finally, the court found that it was significant that all the affected unions had filed a variety of individual and policy grievances in relation to the vaccination policy.
Court Rules That Unionized Employees Do Not Have Standing to Bring Claim
As such, the court held that the essential character of the dispute advanced by the employees fell squarely within the ambit of the collective agreements to which the unionized members were party.
The court therefore ruled that the unionized employees did not have standing to seek relief before the court.
As such, the court ruled that they had failed the first part of the RJR-MacDonald test because their lack of standing meant that they could not prove that there was a serious issue to be tried on the question liability. Thus, the court stated that no injunction could be issued for unionized employees and dissolved the previously issued injunction in their regard.
Court Dissolves Interim Injunction for Unionized and Non-Unionized Employees
Having refused to issue an injunction for unionized employees, the court then turned to the issue of the non-unionized employees.
Ultimately, the court found that because private-sector employment may be terminated at will, subject to rules surrounding compensation, the non-unionized employees would have difficulty proving irreparable harm arising from threatened termination of employment, stating:
“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.”
The court therefore dissolved the interim injunction as it related to non-union employees as well.
Contact Peter McSherry, Guelph Employment Lawyer for Experienced Advice on Mandatory Employer Policies
If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Peter McSherry Employment Lawyer in Guelph. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation with Peter A. McSherry.