What is the court’s power to prevent an employer from terminating an employee’s employment if that worker refuses to adhere to the employer’s mandatory COVID-19 vaccination policy?
In Blake v. University Health Network, 2021 ONSC 7139 (CanLII), Justice Sean F. Dunphy said, essentially, “none.”
The case concerned an application by a group of employees of Toronto’s University Health Network, a collection of hospitals and other healthcare facilities. Some of the employees were members of a union, while others were not.
The plaintiffs dispute, on a number of grounds, the validity of UHN’s recently adopted employment policy requiring all of its more than 17,000 employees to be fully vaccinated or face termination of their employment.
Decision of the Ontario Superior Court
In authoring his reasons for decision, Justice Dunphy noted he was not (his emphasis) addressing the question of the merits or legality of the vaccine policy adopted by UHN.
The first question the court had to answer was whether the individual, unionized plaintiffs had any legal standing to bring the case at all. In finding that they did not, Justice Dunphy wrote the following:
 The resolution of this question must be considered against the backdrop of s. 48(1) of the Labour Relations Act, which provides that “[e]very collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable”.
 The defendant and the intervenor unions may differ on many issues that arise in the course of their relationship. They do, however, concur quite strongly on this point: 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 facts before me demonstrate quite persuasively that the essential character of this dispute goes to the very core of the collective bargaining agreement and relationship. Despite the different statutory schemes invoked in support of the claim – all of which an arbitrator is fully capable of taking into account in resolving the dispute –the claim calls into question the right of the employer to have enacted and enforced its vaccine policy. This clearly requires a consideration of the management rights clause of the collective agreements governing each of the unionized employees. The intersection of those management rights with bargained-for health and safety policies are also fundamental aspects of the collective agreements in place in this case. The claim disputes the right of the employer to terminate the employment of the affected employees. 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 very foundation of the dispute depends on the existence of the collective agreements since, as shall be seen below, there is simply no general right to interfere with the decision of an employer to terminate the employment of an employee with or without cause.
 It is quite material to note that the unions in this case have not been silent as the impugned policy has been announced and implemented. All of them have filed a variety of individual and policy grievances in relation to the vaccination policy. 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. The essential character of a dispute is not altered by strategic choices made as to the remedy being pursued.
 I am satisfied that the essential character of the dispute advanced by the plaintiffs lies squarely within the ambit of the collective agreements to which the unionized members are party. There are outstanding grievances challenging the very same policy that are even now being adjudicated within the dispute resolution regime prescribed. I have no reason to believe that a lengthier or more detailed dive into the facts would alter this conclusion. The dispute in question resides at the very core of the collective bargaining relationship and not at its periphery.
As concerned the non-unionized employees, Justice Dunphy provided these reasons for denying their application for an injunction:
 As a general rule, private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario. Where cause is not alleged, or if cause is alleged and not proved, compensation is payable to the employee. The level of compensation may be a function of a written contract, of statutory minimum standards or of the common law. Given that fundamental principle, it is hard to see how any plaintiff who is not in a union can allege irreparable harm arising from threatened termination of employment. If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money. Money, by definition is not only an adequate remedy it is the only remedy.
 [Counsel for the plaintiffs] suggested that some of the plaintiffs may have additional rights under the Human Rights Code. That may be the case in respect of some of them. The problem in this case is that there is simply no evidence before me that comes close to establishing even a serious issue to be tried that the impugned vaccine policy contravenes the anti-discrimination provisions of the Code as regards any of them. I do not preclude such proof being led at some later date, I merely observe that the record before me simply does not justify the imposition of an injunction grounded solely on that narrow speculative ground.
Net result: All of the plaintiffs were out of court, without an injunction and, I suspect, out of a job if they continued to fail to abide by their employer’s policy.
Like Justice Dunphy I start with two observations: this post is not about the legality of UHN’s policy (which I have not even seen,) nor is it a commentary on whether persons should be vaccinated against a virus which has, as of authoring this post, killed somewhere north of 5,000,000 people, including close to 30,000 in Canada and generally turned the whole of the global economy upside down.
What this post, somewhat reluctantly, takes issue with is Justice Dunphy’s observations at paragraph 28 of His Honour’s reasons for decision. Cherry-picking certain elements of that paragraph, one can see a few items of concern.
First, Justice Dunphy remarked, “As a general rule, private-sector employment may be terminated at will outside of the collective bargaining sphere in Ontario.” While that is mostly accurate, two important caveats must be added: (1) The right of employers to terminate workers’ employment is subject to the obligation on employers to provide dismissed employees with notice of termination, or payment in lieu, plus severance pay as applicable unless they are found to be guilty of “wilful misconduct.” (2) There are several exceptions to that general rule, including many public policy reasons, which prohibit employers from terminating an employee’s employment at all.
That second observation leads to Justice Dunphy’s second, and more egregious misstatement: “If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money.”
That statement is, respectfully, not entirely correct. There are times when employees are entitled to reinstatement if the termination of their employment is not justified. Where an employee is terminated in violation of the strictures of Ontario’s Human Rights Code is one of those cases.
Section 5 of the Code guarantees every person the right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Section 11 of the Code prohibits “constructive discrimination:” “A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.”
Section 11’s prohibition against constructive discrimination is, essentially, the response to Anatole France’s famous quotation that “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
Termination of employment has been consistently held as a form of “discrimination.”
Reinstatement of employment has been held to be a reasonable remedy for an employer’s breach of the Code. Section 45.2(1), paragraph 3 of the Code provides that, “On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application… An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.” In Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, Ontario’s top court confirmed, at paragraph 91 of its reasons for decision, “the remedy of reinstatement clearly falls within the Tribunal’s discretion to order under s. 45.2(1) of the Code.”
Without commenting on whether there has been any form of prohibited discrimination in the case of any of these plaintiffs, or in the case of any person claiming discrimination (whether constructive or actual) on the basis of their inability to adhere to their employer’s mandatory vaccination policy, one cannot wholly discount the possibility that there could be such discrimination. While the Ontario Human Rights Commission has observed that such cases are likely to be exceedingly rare, it is not yet clear that it is impossible.
My observations on this point are not to suggest that I believe Justice Dunphy’s ultimate decision, to refuse to issue an injunctive order in favour of the non-unionized employees, was wrong. His Honour’s comments in paragraph 29 of his reasons for decision speak to the injunction issue and the fact that he simply did not have the evidence in front of him to issue such an order.
Rather, my observations are simply intended to remind employers, who may employ an overzealous reading of Justice Dunphy’s comments in paragraph 28, that there can be remedies beyond money. Strict reliance on the court’s comments in paragraph 28 of this decision could result in drastically unanticipated consequences. A review of the saga in Fair, canvassed by me in my post Passage of Nearly a Decade’s Time Not a Barrier to Reinstatement: ONCA, should provide sufficient warning of how things can go drastically wrong for employers.
Takeaways for Employers
The takeaway for employers from this case is that you shouldn’t take anything away from this decision. The case concerned an application for an injunction and, on the facts presented by the applicants in this case, the court declined to grant such an order. The court did not say anything about the legality of the respondent’s vaccination policy, let alone policies in general.
The warning I give to employers is that I think Justice Dunphy misspoke at paragraph 28 of his reasons for decision and it may be possible, with the right facts in the right case, that a dismissed employee could be reinstated to employment.
Employers contemplating terminating an employee for failure to abide by its mandatory COVID vaccination policy would be prudent to first speak with an experienced employment lawyer.
If you are an employer, looking for guidance on how to prepare a vaccination policy, how to respond to a request for accommodation, or how to effect employee terminations, contact me.
Takeaways for Employees
The takeaway from this decision for employees should be: Don’t count on the court to proactively prevent your employer from terminating your employment if you fail to abide by your employer’s mandatory vaccination policy. Yes, you may have a remedy after the fact if your employer improperly terminates your employment, but that point is still far from certain as well. In my opinion, employers in the non-unionized context can implement policies requiring vaccination and, provided such policy is properly implemented, and provided the employer abides by its obligations under the Human Rights Code, can terminate the employee’s employment without liability. So, I don’t know, maybe speak to your treating healthcare professional about why getting vaccinated might be a good idea?
Employees falling into the very, very few categories of possible medical exemptions (see: Medical Exemptions to COVID-19 Vaccination (September 14, 2021), who have documented medical evidence, and who wish to speak with an employment lawyer may contact me for guidance. Persons seeking such legal advice are cautioned that legal exemptions to an employer’s policies are exceedingly rare and that regular legal fees will attach to all such advice. Moreover, while the comments above contemplate reinstatement as a possible remedy, readers are cautioned that such remedy remains the exception rather than the presumption in these cases. Justice Dunphy’s comments about money being the exclusive remedy were made for a reason.
I can be reached by email at email@example.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.