On October 29, 2021, in Blake v. University Health Network, 2021 ONSC 7139 (Blake), the Ontario Superior Court of Justice discontinued an interim injunction that it had issued on October 22, 2021, staying the terminations of several University Health Network (UHN) employees who were not fully vaccinated against COVID-19.  UHN’s Mandatory Vaccination Policy (Policy) provides that employees who were not fully vaccinated against COVID-19 by October 22, 2021, would be terminated from their employment for cause.  The court did not evaluate the legality of the Policy itself, but rather found that the dispute arose under a union collective agreement, which is subject to arbitration, not civil court action.

Background

On August 17, 2021, Ontario announced that COVID-19 vaccination policies would be mandatory in high-risk settings.  On that same date, the Chief Medical Officer of Health issued Directive #6 under section 77.7 of the Health Protection and Promotion Act, which applies to public hospitals within the meaning of the Public Hospitals Act (Public Hospitals), as well as certain other high-risk settings.  In accordance with Directive #6, effective September 7, 2021, Public Hospitals were required to ensure compliance with a COVID-19 vaccination policy.  As a result, UHN implemented its Policy.  On October 21, 2021, the day prior to the Policy deadline, six UHN employees who were not fully vaccinated against COVID-19 served an urgent motion before the court seeking injunctive relief to stay their terminations. 

Proceedings

Motion Heard and Decision Released on October 22, 2021

The employees’ motion was heard on October 22, 2021.  On that same date, noting that this was a “very hotly contested application” involving issues “strongly debated in the public sphere,” the court issued an interim injunction to preserve the status quo until a proper hearing could take place.  The court indicated it felt comfortable making this short-term order because it would have no practical impact; the affected employees were not scheduled to work between October 22 and October 28, so there was no concern about any potential danger caused by their presence at work.  In addition, the court stated that it declined to decide the matter on October 22 because UHN “raised very significant jurisdictional issues” (i.e., that the court did not have jurisdiction to grant the relief sought to unionized employees as arbitrators have exclusive jurisdiction over matters that arise from a collective agreement (CA)), and it could not make a reasoned decision on these issues on short notice and without a proper briefing. 

Motion Heard on October 28, 2021 and Decision Released on October 29, 2021

A hearing on the issue of jurisdiction took place on October 28, 2021.  On October 29, 2021, the court released its decision emphasizing that it did not address “the merits or the legality of the vaccine policy adopted by UHN,” and addressed only the following issues:

1. Whether the unionized plaintiffs had standing to seek the relief sought in the proposed expanded statement of claim;
2. Whether the court had the jurisdiction to grant the interim relief or permanent relief sought?
3. Whether an interim injunction ought to be continued with respect to non-unionized employees?

Do the unionized plaintiffs have standing to seek the relief sought in the proposed expanded statement of claim?

The court concluded that the unionized employees did not have standing to seek the relief they were seeking and, accordingly, the injunction could not be continued.  In making this decision, the court noted that Ontario’s Labour Relations Act confers exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the CA.  Furthermore, the court observed that UHN and the intervenor unions strongly agreed that the employees did not have standing before the court on the ground 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.”  The court stressed, “The Legislature has gone to great pains to erect a [sic] high walls surrounded by a deep moat to preserve and protect the labour relations environment from external incursions.  The exclusive agency of the union and the exclusive jurisdiction of the arbitral dispute resolution regime mandated are but two of the most prominent elements of that edifice.”  The court was persuaded that the dispute went “to the very core” of the collective bargaining agreement and relationship and observed, “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.”  The court was convinced that the “essential character” of the employees’ dispute “lies squarely within the ambit of the collective agreements to which the unionized parties are party.”

Does the court have the jurisdiction to grant the interim relief or permanent relief sought?

The court acknowledged that a court may have residual jurisdiction to grant remedies that are outside the labour arbitrator’s remedial authority, including interlocutory injunctions; however, it decided this was not an appropriate case to exercise it. The court emphasized that its residual jurisdiction to grant such remedies is not a “Trojan Horse that can be applied to undermine the exclusive jurisdiction of the arbitration process or the exclusive agency of the union in representing its members through the process.”  A court’s residual judicial discretion must be exercised judicially and be seen as “complimentary to and not destructive of those fundamental labour relations principles.” 

The court noted that “no remedy exists to undo a vaccine once administered,” and that the Policy and the COVID-19 vaccine “are both relatively new and their application in the collective bargaining context is yet to be settled”; however, it was not up to it to determine these questions.  The court deferred to the decision of the unions intervening on the hearing not to pursue the remedy, noting that they all had the standing to do so.  It emphasized, “The decision of the collective bargaining agents to pursue or not pursue a particular remedy is one that is entitled considerable deference in our civil court given the fundamental nature of the labour relations principles involved.” 

Should an interim injunction be continued with respect to non-unionized employees?

The court dissolved the interim injunction as it related to non-unionized employees.  Noting that “private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario,” and that compensation is payable to such employees where cause is not alleged or proven, the court stated that non-unionized employees would be unable to allege irreparable harm arising from threatened termination of employment. In the court’s view, “Money, by definition is not only an adequate remedy it is the only remedy.”  

Bottom Line for Employers

Employers should note that Blake addresses jurisdictional issues only.  It confirms that:

• Unions have exclusive agency to represent unionized employees;
• Labour tribunals have exclusive jurisdiction to deal with disputes between the parties that arise from a CA;
• What constitutes just cause for the termination of an employee’s employment lies squarely within the ambit of the CA and, therefore, this is a matter over which labour tribunals have exclusive jurisdiction. 

The confirmation of these jurisdictional principles in Blake is useful to hospitals and other unionized employers as it provides insight into the hesitance of courts to deal with disputes arising from the CA, including disputes pertaining to COVID-19 vaccination.  Blake also provides insight into the disinclination of courts to interfere in a non-unionized employee’s employment relationship.  

Finally, it is important for employers to be mindful that Blake does not address whether an employee’s non-compliance with a mandatory COVID-19 vaccination policy would justify the termination of the employee’s employment for cause.  We anticipate that this issue will soon make its way before the court together with other issues that emerge from the implementation by employers of mandatory COVID-19 vaccination policies.