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Court Of Appeal Upholds Denial of Interlocutory Injunction on Hospitals’ Mandatory Vaccination Policy Pending Labour Arbitration

By Erin Crochetière

In National Organized Workers Union v. Sinai Health System, 2022 ONCA 802, the Court of Appeal considered the jurisdiction of the Superior Court in the context of a labour arbitration.

In the underlying labour arbitration, the Appellant, the National Organized Workers Union, disputed the Respondent hospitals’ mandatory COVID-19 vaccination policy. The Appeal concerned the underlying Superior Court Judge’s decision to decline to grant an interlocutory injunction preventing the Respondent from enforcing the vaccination policy pending the arbitration.

The background to the labour dispute is that a majority of the members of the Appellant organization held employment positions requiring direct patient interaction, such as porters, dietary aides, operating room attendants and housekeeping attendants. Directive #6 introduced by Ontario’s Chief Medical Officer of Health on August 17, 2021 required every healthcare sector employer to develop and implement a policy that required hospital employees to provide their vaccination status to their employer and, if not fully vaccinated, to submit to regular testing and reporting. In response to the Directive, the respondent implemented a mandatory vaccination policy, requiring all employees to be fully vaccinated against COVID-19 or their employment would be terminated, subject to medical or non-medical exemptions.

Prior to the coming into force of the vaccination policy, the Appellant filed a union grievance and an urgent application for an injunction preventing the hospitals from enforcing the policy pending the outcome of the arbitration on the grievance.

The Judge on the underlying application dismissed the application for an interlocutory injunction, stating that she was not satisfied that it was appropriate for the Superior Court to exercise its residual jurisdiction to interfere in the labour relations regime.

On appeal, the Court of Appeal began its analysis by outlining that the labour relations regimes in Canada and in Ontario are intended to establish an exclusive jurisdiction model regarding any disputes arising out of collective agreements. These regimes require that disputes be resolved by way of binding arbitration, and also allows arbitrators to craft various remedies, including orders for reinstatement of employment and compensation for lost wages.

In this context, the Court of Appeal held, the jurisdiction of the Superior Court is residual only, and the Court has jurisdiction to grant injunctive relief only if the arbitral process cannot provide an adequate alternative (but not necessarily identical) remedy.

The Appellant raised a number of grounds of appeal, one of which was that the Application Judge erred in finding that if an injunction were not granted, the harm at issue was employees being placed on unpaid leave or terminated from employment, rather than being forced to submit to vaccination. The Appellant argued that if  employees are forced to submit to the COVID-19 vaccine in order to avoid losing their employment and income, the vaccination would be irremediable, would render the arbitration moot, and could not be remedied by an arbitral award.

The Applications Judge reviewed affidavit evidence from two employees, one which stated that they would submit to the vaccine policy under protest, and one who stated that they would allow their employment to be terminated, rather than submit to vaccination. The Judge concluded that, for the purposes of considering injunctive relief, the harm at issue was that some employees would be placed on unpaid leave or terminated from employment if they chose to remain unvaccinated. The Judge stated:

They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other. . . .

I accept that this is a difficult, stressful, and unwelcome dilemma for the employees concerned. But having to choose between two undesirable alternatives does not create harm that will render the arbitration moot.[1]

The Judge held that the loss of employment and related loss of income could be remedied by an arbitrator in the event that the Appellant was successful on the grievance.

The Court of Appeal held that the Application Judge’s decision to decline to grant an injunction in this matter was discretionary, and attracted deference on appeal. The Court further held that the Judge made no palpable and overriding factual error in characterizing the harm at issue, and that her characterization of the harm was consistent with jurisprudence on the issue.

Further, the Court of Appeal held that it is common in the context of workplace grievances that an employee is faced with consequences for not complying with an employer’s policy. To characterize the choice of complying with the policy or to face termination as anything other than a potential loss of employment, would jeopardize the role of the arbitration as the exclusive forum to resolve workplace disputes.

The appeal was dismissed and costs awarded to the Respondent hospitals.

Key takeaways from this decision are that labour grievances arising from collective agreements are within the exclusive jurisdictions of the labour arbitration scheme, and the Superior Court will only exercise its discretion where there is a “remedial gap” or if the arbitral process cannot provide an adequate alternative remedy. Notably, the alternative remedy need not be identical to the remedy available in the Superior Court.

Given the nature of collective agreements, and the disputes arising therefrom, it is likely that the harm suffered by an employee will often be characterized as a risk of termination, which can, based on this decision, almost always be remedied by reinstatement and compensation for lost wages. Accordingly, it will be a rare case in which the Superior Court will exercise its residual discretion over labour disputes.

[1] At para 34.