THE EMPLOYERS' EDGE
ONTARIO SUPERIOR COURT DECLINES TO ISSUE INJUNCTION ON COVID-19 VACCINATION POLICY
In the recent decision of Blake v University Health Network, 2021 ONSC 7139, Justice Dunphy of the Ontario Superior Court of Justice ruled that employees who are subject to potential termination for not complying with a newly-instituted COVID-19 vaccination policy cannot seek injunctive relief from the Court.
Facts of the Case
The plaintiffs, both union and non-union employees of University Health Network (“UHN”), disputed the validity of a recent policy of the defendant employer. The policy was set to commence on October 22, 2021, which required all of its more than 17,000 employees to be fully vaccinated or face termination of their employment.
The plaintiffs were seeking an injunction which they hoped would put a temporary hold on the policy while other proceedings are pending that will decide the validity and legality of the policy.
Decision of Justice Dunphy
It is important to remember that this decision does not address the question of the merits or legality of the vaccine policy adopted by UHN. The plaintiffs argued that the court should grant an injunction because allowing UHN to terminate employees before a decision has been made on the legality of the policy could cause irreparable harm.
To make their case the plaintiffs were required to satisfy the test from RJR-MacDonald Inc. v Canada (Attorney General),  1 SCR 311. The first question the court asked was whether the unionized plaintiffs had any legal standing to bring the case at all.
Unionized Employee’s Did Not Have Standing
Justice Dunphy found that the unionized plaintiffs did not have standing. He found that the essential character of this dispute was about the management rights conferred to the employer by the collective agreement and an arbitrator has exclusive jurisdiction to hear this matter. Justice Dunphy stated the following about the importance of arbitral jurisdiction:
“The Legislature has gone to great pains to erect a high walls surrounded by a deep moat to preserve and protect the labour relations environment from external incursions. The exclusive agency of the union and the exclusive jurisdiction of the arbitral dispute resolution regime mandated are but two of the most prominent elements of that edifice.”
Non-Union Employees Did Not Suffer Irreparable Harm
In declining to grant an Injunction to the non-union plaintiffs, Justice Dunphy concluded that they would not suffer irreparable harm if the policy was enacted and later found to be invalid or illegal.
This conclusion was based on the premise that if the termination of these employees is not justified, they are not entitled to their job back, rather they are entitled to money that can be paid later. Therefore the potential harm is not irreparable.
This statement, however, may not be entirely correct in some situations where courts have ordered reinstatement – such may be the case following constructive dismissal from discrimination. In any case, the harm suffered is still therefore compensable by reinstatement and monetary awards.
This case does not answer the much anticipated question about the legality of a COVID-19 mandatory vaccination policy, but it is a welcome decision for employers who want certainty about where and when claims can be brought against them. This decision provides us with a strong precedent about a union employee’s ability to seek injunctive relief from the court. Aside from what Justice Dunphy describes as a “narrow window” for judges to interfere with the exclusive jurisdiction of an arbitrator, it is generally accepted that any disagreement arising from a collective agreement should only be heard by an arbitrator.
Further, injunctions sought for non-union employees must demonstrate irreparable harm. According to this court, termination of employment may be reparable through monetary damages.
Contact the legal experts at CCPartners for any questions about your collective agreement or unionized workplace.