On September 7th, 2021, the Toronto Transit Commission announced its mandatory vaccination policy. According to this policy, employees or dependent contractor who have not had their COVID-19 vaccine would be placed on unpaid leave beginning November 21st. Those who remained unvaccinated would then be terminated with cause (i.e., without any severance pay) on December 31st

Unsurprisingly, not everybody at the TTC welcomed this new policy. It put their jobs at risk. To that end, the Amalgamated Transit Union Local 113, a union which represents approximately 12,000 TTC employees, approached the Ontario Superior Court of Justice to ask for an injunction to temporarily pause the enforcement of the controversial vaccine policy until after the union had an opportunity to grieve it at arbitration. 

 

The Union’s Position

Notwithstanding their efforts in seeking an injunction, the Union has asserted that they are not actually opposed to vaccine. In fact, the Union’s president, Carlos Santos, stated that the Union actually supports COVID-19 vaccines. The issue is rather the Union’s concern with protecting their workers, their individual rights, and their jobs. According to the Union, if denied this injunction, their members would lose their jobs before the grievance procedure even begins.  

In the Union’s opinion, the denial of this injunction would result in irreparable harm to their members. Irreparable harm means harm that cannot be adequately compensated by damages because it cannot be quantified in a dollar amount or otherwise cured. The Union argued there would be irreparable harm for five reasons:

  1. Many of their members would be compelled by extreme economic duress to accept vaccines against their will. This would be an invasion of bodily autonomy and privacy;
  2. All their members would suffer psychological stress and emotional harm which is difficult to compensate via damages;
  3. All would lose unionized employment, which carries with it a right to reinstatement under the collective agreement;
  4. Some of their members would be forced into early retirement. This would cause a loss of self-esteem, fulfillment, and changes to their individual retirement plans that cannot be compensated by damages; and, finally,
  5. Refusing to grant interlocutory relief would cause irreparable harm to the arbitration proceeding and the relationship between the TTC and the Union’s members.

For these reasons, the Union argued the Superior Court should grant them an injunction and thereby prevent the policy from taking effect until after the grievance had run its course. 

 

Conclusion: No Injunction Granted

Ultimately, the trial judge refused to grant the Union the injunction they were seeking. The trial judge disagreed that there would be irreparable harm if the injunction was not granted. In her opinion, the policy would not have the effect of forcing TTC employees to receive the COVID-19 vaccine against their will. On this point, she wrote:

“[77]           Fundamentally, I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated. It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual’s to make. Of course, each choice comes with its own consequences; that is the nature of choices.”

The choice, of course, is between receiving the vaccine and retaining their employment. 

Furthermore, the trial judge rejected the assertion that psychological stress and emotional harm can amount to irreparable harm. Every employee is likely to suffer that stress and emotional harm when faced with the termination of their employment, regardless of the cause.

Finally, the trial judge noted the legitimate health and safety purpose for the TTC’s vaccine mandate:

“[…] while the service cuts contemplated are regrettable, the potential for unvaccinated workers to spread COVID-19 to co-workers or riders is a risk the TTC should not have to accept. It is a risk which is inconsistent with its obligation to create a safe workplace for its employees and a safe way of getting around the city for its riders.

Accordingly, the trial judge found that the harm faced by the Union’s members was indeed reparable and that the balance of convenience weighed heavily in favour of the TTC. 

As a result, the injunction was denied.