Injunctions Against Mandatory Vaccination Policies Denied

In two recent decisions, Courts denied workers’ applications for injunctive relief against mandatory COVID-19 vaccination policies. While both involved unionized workplaces, the Courts applied common law principles that could apply for non-unionized workers as well.

First, the Ontario Superior Court of Justice dealt with two overlapping applications for interim injunctive relief in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658. In both applications, the employers implemented mandatory vaccination policies and the unions had filed grievances against the policies. The unions simultaneously sought interim injunctive relief restraining the employers from enforcing their mandatory vaccination policies pending the results of the grievance processes. If the injunctive relief was not granted, the unvaccinated employees would face discipline, including unpaid suspension and/or termination before the grievance process would conclude.

The test to grant interim injunctive relief is:

  1. Is there a serious issue to be tried?
  2. If the injunction is not granted, will the applicants suffer irreparable harm which cannot be compensated for in damages? and
  3. Does the balance of convenience favour granting the injunction?

The first step is a low threshold and the unions met it easily. The applications failed at the second step. The unions’ argument that the vaccination policy was coercive and employees who got vaccinated against their wishes would be irreparably harmed through violations of informed consent and bodily autonomy was rejected. The Court stated:

“[the union] has mischaracterized the harm at issue. The harm which the employees may suffer is being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated. 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.”

Based on this conclusion, the Court did not consider the unions’ evidence about the safety of vaccines. The Court noted that the loss of employment causes a great deal of stress, but the loss of employment is a harm that is “reparable.”

At the third step, the Court found the balance of convenience favoured the employers. Specifically, it stated that the potential for unvaccinated workers to spread COVID-19 to co-workers or members of the public in the workplace is not a risk the employer should have to accept, particularly because that risk is “inconsistent with its obligation to create a safe workplace for its employees.”

In another case, Wojdan v. Canada (AG), 2021 FC 1341, the Federal Court followed the decision above in denying an interlocutory injunction against a mandatory vaccine policy. The Federal Court stated, “Put simply, a vaccine mandate does not cause irreparable harm because it does not force vaccination.”

Take Away

It is important to note that these decisions were not about whether the employer was entitled to enact these policies, which was within the sole jurisdiction of the grievance process/labour arbitration. Rather, the Courts were only considering whether interim injunctions should be granted, which is an “extraordinary relief” that is rarely granted. Still, the Courts’ view that mandatory vaccine policies do not force employees to be vaccinated is a welcome relief for employers grappling with the legality of these policies and the push-back many are receiving from employees.

Update on Infectious Disease Leave and ESA Amendments

Court of Appeal to Consider Whether IDEL Layoff is Constructive Dismissal at Common Law

In April 2022, the Ontario Court of Appeal will decide whether employees who have been temporarily laid off because of the COVID-19 pandemic are constructively dismissed at common law. As outlined in our June Newsletter, there have been conflicting decisions out of the Ontario Superior Court of Justice on this issue. Two decisions found that while a layoff for reasons related to COVID-19 is not a constructive dismissal for the purposes of the Employment Standards Act, 2000, it is a constructive dismissal at common law. One decision, Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135, held that an IDEL layoff was not constructive dismissal at common law.  The employee in Taylor v. Hanley Hospitality is appealing the decision and it is now up to the Court of Appeal to clear up this discrepancy.

The lawyers at Heeney Vokey LLP will be sending out a newsletter when the decision is rendered.

Disconnecting From Work Policies

The Employment Standards Act, 2000 was recently amended to require employers with 25 or more employees to have a written policy with respect to disconnecting from work. Unfortunately, no specifics on what must be included in the policy, such as exemptions and/or parameters on when employees must not engage in work-related communications, have been released. We will be circulating a newsletter as soon as any guidance on this issue is provided from by the Government. Please see our December Newsletter for further information on disconnecting from work policies.