Blake v University Health Network, 2021 ONSC 7139 concerned an application by a group of employees at Toronto’s University Health Network (“UHN”) who challenged the validity of UHN’s recently adopted mandatory vaccination policy. Some of these employees were unionized; others were not. The UHN policy required all of UHN’s employees to be fully vaccinated by October 22, 2021 or face employment termination.
History of Proceedings
On October 22, 2021, the Ontario Superior Court held an emergency hearing pursuant to an application filed the day before by six UHN employees (the number of employees involved in this case subsequently grew to more than two dozen). Due to the short notice and lack of materials before the Court, Justice Sean Dunphy issued an interim injunction to preserve the employment status quo until a proper hearing could take place, on the basis that the interim injunction would not cause irreparable harm to any party. Justice Dunphy directed that the preliminary hearing on the question of the Court’s jurisdiction was to be held on October 28, 2021. This decision meant that the UHN was only temporarily restricted from terminating the employees involved in this case for not complying with the policy, pending the Court’s decision following the October 28, 2021, hearing.
On October 29, 2021, Justice Dunphy’s decision was released. In it, he emphasized that his decision did not address the question of the merits, or the legality of the vaccine policy adopted by the UHN. Justice Dunphy also clarified that the interim injunction granted the previous week was not based on an analysis of whether it could or should be issued based on the applicable legal test set out below; it was merely to freeze any further action by either party until the preliminary hearing was held, to grant a better opportunity to examine this question.
To obtain the interim injunction they sought, the employees were required to satisfy the three-part test for interim injunctions established by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (“RJR”), namely:
- Is there a serious issue to be tried on the question of liability?
- Is there a real potential for irreparable harm to ensue if relief is not granted? and
- Does the balance of convenience favour the granting of relief at this early stage?
The first part of the RJR test was not satisfied in respect of the unionized applicants because the Court found that the unionized employees involved in the case did not have standing to seek an injunction. The Court found that the essential character of the dispute fell within the ambit of the applicable collective agreement(s) and was therefore subject to the exclusive agency of the union, and the exclusive jurisdiction of an arbitrator. The Court noted that “the jurisdiction of the prescribed arbitration process to resolve disputes arising in the collective bargaining context is exclusive and must be carefully secured against interference from the civil courts” (paragraph 7).
The Court also noted that many unions had already filed individual and policy grievances related to the vaccine policy and were pursuing the grievances at arbitration, writing at paragraph 13:
The fact that the unions have not pursued all of the remedies desired by the plaintiffs in the time frame they would have liked does not affect the analysis. The plaintiffs take issue with the manner in which the unions have pursued the resolution of those grievances but not with their right to do so. […]
Second, Justice Dunphy declined to invoke the Court’s residual authority to grant remedies lying outside the remedial authority of a labour arbitrator. The Court adopted a deferential approach and refused to disturb the judgement and decisions of the collective bargaining agents. It held that the residual discretion of the civil courts must be seen to complement and not undermine the fundamental labour relations principles.
The Court also held that injunctive relief was not a remedy available to the non-unionized employees faced with termination since employers are entitled to terminate non-unionized employees without cause. Non-unionized employees may claim compensation for wrongful dismissal but have no right to reinstatement. Thus, no irreparable harm would ensue to such employees as a result of the application of the UHN policy and no injunction could be issued or continued.
Takeaways for Employers: This case did not deal with the merits or the legality of the UHN’s policy. Whether an employer is entitled to dismiss an employee for refusing to comply with a vaccination policy in any particular case remains to be seen. The outcome of such disputes could vary depending on the employer involved, the nature of the workplace and the work, and other surrounding circumstances. What this decision has done is provide some clarity on where and how disputes about dismissal of non-compliant employees will be dealt with. Given the many uncertainties employers have had to contend with over the past 20 months, this is a welcome development.
Employers who have or who are considering mandatory vaccination policies are having to navigate many practical and legal issues. For advice specific to your situation, please contact your regular lawyer at Rae Christen Jeffries LLP or any member of our firm.