On November 19, 2021, in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System, 2021 ONSC 7658 (TTC/Sinai Decision), the Ontario Superior Court dismissed union applications asking it to grant injunctions restraining the Toronto Transit Commission (TTC) and Sinai Health System (Sinai) from suspending or terminating unvaccinated employees before their mandatory vaccination policies could be challenged in the grievance process. The TTC/Sinai Decision is another decision from an adjudicator that demonstrates support for mandatory vaccination policies in the workplace and provides encouragement for employers that have implemented such policies.

Background to Sinai Application

Sinai implemented a mandatory vaccination policy requiring its employees be fully vaccinated against COVID-19 by December 9, 2021, or have their employment terminated (Sinai Policy). The Sinai Policy includes a process that would allow an individual to seek a medical or non-medical exemption under Ontario’s Human Rights Code (HRC), and to be accommodated if granted an exemption.

The National Organized Workers Union (NOWU) asked the court to grant interim injunctive relief, restraining Sinai from enforcing its policy pending the results of the grievance process. As a threshold matter, the court was required to address whether circumstances existed for the court to exercise its residual jurisdiction given that the labour arbitration process was underway.

Although Sinai did not contest whether the court had residual jurisdiction to grant an interlocutory injunction in labour relations matters, it argued that the circumstances in which the court can intervene are constrained and did not exist in this matter. While the Canadian labour relations regime requires unions to use the arbitral process to seek redress for an employer’s wrongdoings, courts should intervene only when there is a gap, i.e., when an adequate alternative remedy is unavailable through the appropriate administrative tribunal. Sinai argued that there was a clear process under Ontario’s Labour Relations Act, 1995 (OLRA) that allowed NOWU to challenge the vaccination policy on an expedited basis, and the arbitrator to grant retroactive remedies, reinstate employment with seniority and compensation for lost time, and address human rights concerns. Sinai also argued that in the collective agreement, the parties agreed to a process for grievance and arbitration when a member of the bargaining unit and the hospital differ.

NOWU argued that if injunctive relief were not granted, some unvaccinated employees would be “coerced into becoming vaccinated, contrary to principles of informed and voluntary consent.” According to NOWU, the injunction was necessary to preserve the employees’ rights pending completion of the grievance process, as without it the arbitration would become moot. NOWU argued further that employees who get vaccinated against their wishes would irreversibly alter their body and be irreparably harmed; they would experience “violations of informed consent to medical treatment and bodily autonomy, and the reasonable probability of personal injury arising from the vaccine.”

Decision re Sinai Application

The court dismissed the Sinai application on the basis that there was no gap in the legislative regime that would support the exercise of the court’s residual jurisdiction. Furthermore, the court took the position that NOWU mischaracterized the harm at issue. In its view, the harm to unvaccinated employees was “being placed on unpaid leave, or being terminated from employment, if they remain unvaccinated.” The court stated, “No one is forced to get vaccinated.” The employees were instead 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.” The court stressed that “having to choose between two undesirable alternatives does not create harm that will render the arbitration moot.” In support of its position, the court noted that its characterization of the harm was consistent with a recent decision of the Superior Court of Quebec, Michel Lachance c. P.G. du Quebec (not yet reported), in which the court concluded that a vaccine mandate does not cause irreparable harm because it does not force vaccination. Finally, the court emphasized, “loss of employment has been repeatedly held to be a reparable harm.” The court also stressed that this approach is consistent with the approach taken in wrongful dismissal cases where a union is not involved and, “where courts have repeatedly confirmed that loss of employment can be compensated in money damages.”

Upon determining that there was no gap in the legislative regime that would support the exercise of the court’s residual jurisdiction, the court agreed with Sinai’s argument that there was a clear process under the OLRA that allowed NOWU to challenge the Sinai policy on an expedited basis, and the arbitrator to grant retroactive remedies, reinstate employment with seniority and compensation for lost time, and address human rights concerns.

Background to TTC Application

The TTC implemented a mandatory vaccination policy (TTC Policy) that requires its employees to be fully vaccinated against COVID-19, unless an approved exemption applies pursuant to the HRC. Unexempted employees who had not proven that they were fully vaccinated by November 21, 2021, would be placed on unpaid leaves of absence, and those who do not confirm they are fully vaccinated by December 31, 2021 will be terminated from employment. The TTC Policy requires the TTC to accommodate employees who have a valid exemption and request accommodation.

The Amalgamated Transit Union (ATU) grieved the TTC Policy. It then asked the court to grant an interlocutory injunction restraining the TTC from enforcing the TTC Policy pending the results of the grievance process. In accordance with the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (RJR-MacDonald), to obtain the injunction, the ATU was required to establish that there was a serious issue to be tried; if the application was not granted, it would suffer irreparable harm; and the balance of convenience lies with the ATU, i.e., it is the party that would suffer the greater harm from the granting or refusal of the injunction pending a decision on the merits of the grievance. Although the TTC did not concede that there was a serious issue to be tried, it focused on the last two.

Decision re TTC Application

The court noted that injunctive relief is an extraordinary remedy, and in accordance with the test in RJR-MacDonald, determined that there was no doubt that the ATU’s grievance met the first branch of the test, i.e., there was a serious issue to be tried; however, the court denied the interlocutory injunction on the basis that the ATU failed to demonstrate that it would suffer irreparable harm if the injunction was refused, and that the balance of convenience favoured the ATU.

The court stated that “the harm at issue is the loss of employment or income that the unvaccinated will suffer” and “Choosing vaccination as a less undesirable alternative than the loss of one’s income (which may be restored if the challenge to the policy in the labour arbitration is successful) is not properly characterized as the harm” for the same reasons explained in the court’s decision relating to the Sinai application. The court emphasized:

Fundamentally, I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated. It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual’s to make. Of course, each choice comes with its own consequences; that is the nature of choices. (para. 77)

Furthermore, the court rejected the ATU’s argument that psychological stress and emotional harm amounted to irreparable harm as, “Any employee facing termination can be expected to suffer from stress and emotional harm” and to consider this irreparable harm “would be inconsistent with the nature of injunctive relief as extraordinary.”

The court also rejected the ATU’s argument that the stigma attaching to those who decide not to get vaccinated and are suspended or terminated was irreparable harm. In the court’s view, the evidence about stigma was “speculative at best.” Moreover, said the court, “any stigma that comes from being unvaccinated does not arise as a result of the TTC’s policy, but it is a societal consequence of the choice not to be vaccinated.”

The court noted that at the stage of assessing where the balance of convenience lies, a party, “…may tip the scale of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought.”

In describing the harm that it would experience, the TTC argued that its policy is in the public interest. The TTC emphasized that it is the third-most heavily used mass transit system in North America. It is designated an “essential service,” and the health and safety of its workforce and riders would be at greater risk if unvaccinated employees were permitted to continue to be present at the workplace. Moreover, in operating Wheel Trans, a TTC service for people living with disabilities, close interaction occurs between the service’s operators and its vulnerable users. As an employer, the TTC has an obligation under the Occupational Health and Safety Act to take every precaution reasonable in the circumstances to protect the health and safety of its workers, and it is also expected to protect the health and safety of its riders and the community at large.

Moreover, the City of Toronto issued a mandatory vaccination policy. The Toronto Medical Officer of Health strongly recommended that all Toronto employers institute COVID-19 vaccination policies. The City Manager encouraged the adoption of a mandatory vaccination policy, and public health authorities encourage vaccination.

In light of the above, the court concluded that the balance of convenience favoured the TTC, which “established that the enforcement of its mandatory vaccination policy aligns with the public interest broadly, as well as the interests of the TTC’s workforce and ridership specifically.” The court emphasized that the harm would be truly irreparable, “If even one TTC rider or worker dies or is seriously harmed after catching COVID-19 from an unvaccinated TTC employee…”

Bottom Line for Employers

The TTC/Sinai Decision confirms that in the unionized context, there is a clear process under the OLRA’s statutory scheme, which allows a union to challenge a mandatory vaccination policy on an expedited basis; as there is no gap in the legislative regime that would support the exercise of the court’s residual jurisdiction, unions must challenge mandatory vaccination policies through the labour arbitration process.

While injunctions are difficult to obtain in any setting, the TTC/Sinai Decision confirms that unionized employees will not easily obtain injunctions to restrain employers from suspending or terminating unvaccinated employees before their mandatory vaccination policies could be challenged in the grievance process.