Canada: Court Of Appeal Denies Injunction Relating To Mandatory Vaccination Policy

The Ontario Court of Appeal recently released its reasons in National Organized Workers Union v. Sinai Health System. The Court dismissed the appeal brought by the National Organized Workers Union (Union) of an Ontario Superior Court decision which refused to stay the implementation of the workplace COVID-19 vaccination policy (Policy) of Sinai Health System (Sinai Health) pending the outcome of grievance arbitrations challenging the validity of the Policy.

In doing so, the Court of Appeal stated that workplace mandatory vaccination policies do not deprive employees of the choice to be vaccinated or remain unvaccinated, and do not deny them bodily autonomy or the right to give informed consent to vaccination.

The Superior Court Decision

In October 2021, Sinai Health introduced the Policy which required employees to be fully vaccinated against COVID-19 by December 2021, failing which their employment would be terminated. At a hearing on November 17, 2021, the Union sought an interlocutory injunction to restrain Sinai Health from implementing the Policy pending the outcome of a number of policy grievances brought by the Union. The Ontario Hospital Association intervened in the application (and on the appeal) in light of its role in labour relations in the hospital sector.

The application judge dismissed the Union's application for an interlocutory injunction on the basis that there was no gap in the legislative regime that would support the exercise of the Court's residual jurisdiction to intervene in labour relations matters. The reasons of the application judge are discussed in greater detail in our November 20, 2021 FTR Now, Court Denies Injunction Motions and Allows Mandatory Vaccination Policies to be Implemented. The Union appealed the decision of the application judge.

The Court of Appeal Decision

The Court of Appeal held that the application judge did not err in law or make any palpable and overriding error of fact and, as a result, found no basis to intervene in her decision.

In doing so, the Court found that the availability of expedited arbitration under the Labour Relations Act, 1995 provided an "adequate alternative remedy" to the injunctive relief sought by the Union, and it therefore declined to engage the Court's residual jurisdiction.

The Court of Appeal also found that the application judge made no palpable and overriding factual error when she found that the harm faced by the Union's members if injunctive relief were not granted was the potential of being placed on unpaid leave or terminated from employment if they chose not to be vaccinated.

It agreed that the Union's members "were not being forced to be vaccinated, denied bodily autonomy, or denied the right to give informed consent to vaccination" by virtue of the Policy.

The Court of Appeal provided the following commentary on the element of personal choice that remains present for employees faced with a workplace vaccination policy (at paras. 38, 41):

...[The Union's members] could choose to be vaccinated or not. If they chose not to be vaccinated, they faced being placed on unpaid leave or having their employment terminated...

...It is not uncommon for employees to have to make choices in the context of their employment that they might not choose to make absent workplace considerations. In a unionized environment, if the employee objects to the requirements of a workplace policy, the remedy is a grievance carried by the union. If the employee chooses not to comply with the policy pending the grievance arbitration, they may face workplace discipline, including, depending on the circumstances, termination. In these circumstances, employees sometimes have to make difficult choices. To characterize this type of choice as something other than a potential loss of employment (compensable by an arbitrator by the usual remedies of reinstatement and awards for lost wages), would jeopardize the role of arbitration as the exclusive forum to resolve workplace disputes by permitting "routine access to the courts."

The Court concluded that the potential harm faced by the Union's members was "fundamentally related to employment" and a harm that a labour arbitrator had the tools to remedy, including through reinstatement without loss of seniority and compensation for lost wages.

Accordingly, there was no basis for the Court to intervene in the discretionary decision of the application judge to decline to engage the Court's residual jurisdiction to grant an interlocutory injunction.

Takeaways

The Court of Appeal's decision confirms that the labour relations regime is the avenue through which challenges (including interlocutory challenges) to mandatory vaccination policies in unionized environments will be determined, rather than through the courts.

More broadly, its reasons provide important confirmation that an employee's decision to become vaccinated or remain unvaccinated in the face of a workplace vaccination policy will be viewed, fundamentally, as a personal choice that may bear employment consequences, rather than as a compelled choice.

Sinai Health Systems was represented by Hicks Morley's Bonnie Roberts Jones, Elisha Jamieson-Davies and Rachel Counsell.

The intervenor Ontario Hospital Association was represented by Hicks Morley's Frank Cesario, Eleanor Vaughan and Danika Winkel.

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