Injunction Denied for Unvaccinated Hospital Employees Seeking to Preserve Employment Despite Mandatory Vaccination Policy

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The Ontario Superior Court of Justice has denied an injunction to a group of unvaccinated University Health Network (“UHN”) employees seeking to preserve their employment status despite the provisions of a mandatory vaccination policy (the “Policy”) providing for the termination of unvaccinated employees.

The Interim Injunction

A group of six UHN employees issued a Notice of Action disputing the Policy.  On October 22, 2021, they brought an urgent motion for an interim injunction to preserve their employment status, as well as that of other unvaccinated UHN employees, because the Policy provided for the termination of unvaccinated employees commencing that same day.

On October 22, Justice Sean Dunphy issued an interim injunction preserving the employment status of only the six plaintiffs, as well as nineteen other employees who were in the process of retaining the plaintiffs’ counsel but had not yet completed the process of doing so.  He declined to make an order in respect of other unvaccinated employees, who were not parties to the proceedings.

The injunction was granted to provide him with time to be better briefed on the issues, and to grant time for the various unions, who were not parties to the proceedings, to provide him with their views.

Denial of Injunction

On October 28, Justice Dunphy declined to award an injunction to the employees, and dissolved his interim injunction.  He emphasized that the injunction decision did not constitute a decision on the merits or legality of UHN’s mandatory vaccination policy.

Justice Dunphy found that the plaintiffs did not meet the three-part test for an interim injunction in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311:

  1. Is there a serious question to be tried?
  2. Is there a real potential for irreparable harm to ensue if relief is not granted?
  3. Does the balance of convenience favour the granting of relief at this early stage?

Standing

The first question was whether the unionized plaintiffs had standing to seek the relief sought in the proposed expanded Statement of Claim.  Justice Dunphy recognized the legal principles regarding the exclusivity of jurisdiction of labour tribunals and arbitrators with respect to matters falling under the ambit of a collective agreement, as well as the key principle in labour law that the union has a “monopoly” over representation.

The case dealt with issues such as management’s right to implement and enforce the Policy, the application of health and safety provisions of the collective agreements, and the employer’s right to terminate.  As such, Justice Dunphy was persuaded that “the essential character of this dispute goes to the very core of the collective bargaining agreement and relationship.”

Justice Dunphy noted that the unions had filed individual and policy grievances in relation to the Policy.  While the employees took issue with the manner in how the unions were seeking to resolve those grievances, they did not take issue with the unions’ right to do so.

When these conclusions about the claim’s jurisdictional foundation were applied to the RJR test, Justice Dunphy found that the plaintiffs were not able to meet the first step.  If the plaintiffs did not have standing, then there was no serious issue to be tried with respect to proving liability before the court.

Jurisdiction

The second question was whether, with respect to the claims made by the unionized plaintiffs, the court had jurisdiction to grant the interim or permanent relief sought.

Relying on the recent Supreme Court case of Northern Regional Health Authority v. Horrocks, 2021 SCC 42, the plaintiffs argued that even if the civil claim was stayed in favour of arbitration, courts still had the residual jurisdiction to grant remedies that lay outside the authority of a labour arbitrator, including interlocutory (interim) injunctions.

Justice Dunphy found that such residual jurisdiction should only be exercised in cases where the authority would complement, not destroy, the fundamental labour relations principles mentioned above.  In this case, none of the unions had asked him to maintain the interim injunction or sought such a remedy.  Union decisions about which remedies to pursue were entitled to deference, in accordance with labour law principles.

The plaintiffs’ request for an injunction essentially called into question the manner in which the unions were resolving the dispute.  However, the unions had exclusive carriage of the grievances in relation to the Policy.  Ordering an injunction would essentially substitute the judge’s opinion for that of the union about the adequacy of the remedies being pursued.  Justice Dunphy declined to essentially impose a remedy, even on an interim basis, that was not requested by the union.

Maintenance of Interim Injunction for Non-Unionized Employees

Lastly, Justice Dunphy looked at the question of whether the interim injunction should be continued for non-unionized employees.  He declined to do so.  He noted that irreparable harm was difficult to establish because not only can terminations of non-unionized employees be compensated for by way of monetary damages, such damages are the only remedy because reinstatement is not available.  As such, an injunction was not appropriate.

Conclusion

For the reasons outlined above, Justice Dunphy did not grant the injunction sought, and dissolved the interim injunction that he had ordered.  The UHN had requested that the action be struck, but Justice Dunphy declined to do so, finding that it would be premature to do so before the statement of claim had been finalized.

In Our View

While the employer was successful on the motion, the decision is not a determination of the merits of the mandatory vaccination policy.  Employers therefore still do not have jurisprudential guidance about whether such policies would be upheld, and the factors that would be considered in such an analysis.

The decision does confirm that where such policies fall under the ambit of a collective agreement, disputes about those policies will be dealt with in accordance with collective agreement provisions and fall within the exclusive jurisdiction of a labour arbitrator.

For non-unionized employees, the decision confirms that injunctive relief is not necessary in the event of a termination pursuant to a mandatory vaccination policy because such terminations can be compensated for by way of monetary damages.

We continue to await guidance in the case law with respect to terminations based on mandatory vaccination policies, and will update Focus readers as those cases are released.

For more information, please contact J.D. Sharp at 613-940-2739 or Joël Rocque at 613-563-7660 ext. 310.