In the first of inevitably many Ontario court proceedings concerning the implementation of mandatory COVID-19 policies in hospitals, the Ontario Superior Court of Justice dissolved an interim injunction to stay the termination of employees who refused to get their vaccines. This decision is particularly important for unionized employees who may hope to challenge mandatory vaccine policies in the workplace. A key issue in the case was whether or not the unionized employees even had standing.
Standing: Unionized Employees and Mandatory Vaccine Policies
Labour law in Ontario provides that workplace disputes arising in the unionized context must be resolved through final and binding settlement by arbitration. In this case, both the employer and the union agreed that the jurisdiction of arbitration to resolve workplace disputes in the unionized context is exclusive such that courts cannot interfere. There is no overlapping jurisdiction. If the “essential character” of the dispute arises from the interpretation, application, administration or violation of the collective agreement, then jurisdiction to hear the dispute rests solely in arbitration.
In considering the issue of jurisdiction, Justice Dunphy commented: “The Legislature has gone to great pains to erect high walls surrounded by a deep moat to preserve and protect the labor relations environment from outside incursions.”
It was clear to Justice Dunphy that the “essential character” of the dispute went to the “very core” of the collective agreement because the dispute challenges the right of the employer to have implemented a mandatory vaccine policy and the right of the employer to terminate the employment of the affected employees. According to Justice Dunphy: “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.”
Accordingly, the unionized employees did not have standing to pursue the dispute in the civil courts. Their only option, the exclusive option, was arbitration. The choice of a union to pursue or not to pursue a particular remedy is something courts must give considerable deference to.
The importance of this decision is that it confirms the continued exclusivity of labour arbitrators even in the context of mandatory COVID-19 vaccination policies, which are relatively new and immensely controversial.
What About Non-Unionized Employees?
Justice Dunphy found that the unionized employees did not have standing – but, what about non-unionized employees? These employees would not be subject to the exclusive jurisdiction of labour arbitration or the exclusive representation of a union.
Nevertheless, Justice Dunphy could not prevent their employer from terminating them for not having the vaccine. Generally speaking, non-unionized employees can be terminated at will for any reason whatsoever, including for no reason at all, so long as compensation is provided to the employee in situations where no cause is alleged or where cause is alleged but not proved. If cause is not proved, employees do not get their jobs back. Compensation is the only remedy available. A court cannot order an injunction to prevent a wrongful dismissal (assuming these dismissals are indeed wrongful to begin with).
The Unanswered Question: Was there Just Cause? </h2.
The question we all want to be answered is not whether an employer can dismiss an employee for being unvaccinated, as that answer is generally yes. The question we all want to be answered is whether an employer can dismiss an employee for cause, meaning that the employee is not entitled to notice or pay in lieu of notice.
Unfortunately, that all-important question was not answered in this case. Nor does this case address whether or not mandatory vaccine policies are legal, to begin with. We will have to continue to wait in order to have these questions answered. For now, we can rest assured that unionized employees must rely, as always, on arbitration, and that non-unionized employees cannot rely on injunctions to prevent their terminations.