A Year in Review – Ontario Vaccination Cases

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The following is a chronological summary of the noteworthy cases regarding mandatory vaccination policies published in Ontario from 2021.

  • On October 29, 2021, the Ontario Superior Court refused to continue an interim injunction preventing the University Health Network from implementing its mandatory vaccination policy.  As previously reported, Justice Dunphy found that for unionized employees, labour arbitrators have exclusive jurisdiction to hear grievances related to mandatory COVID-19 vaccination policies.
  • On November 9, 2021, Arbitrator Von Veh found that a mandatory vaccination policy for contract security guards assigned to client premises was reasonable:  UFCW and Paragon Protection Ltd. See also, our prior publication on this decision.
  • On November 11, 2021, Arbitrator Stout found that a mandatory vaccination policy was not reasonable for employees where work from home was an option and there were no serious operational issues arising from clients refusing unvaccinated inspectors on site:  Electrical Safety Authority and Power Workers’ Union. See also, our prior publication on this decision.
  • On November 12, 2021, arbitrator Murray upheld a vaccination policy that required employees to disclose their vaccination status and be regularly tested if they were unvaccinated or refused to disclose their vaccination status. Arbitrator Murray found that the testing could be performed on the employee’s time but the cost of testing should be paid by the employer. A requirement to show proof of fully vaccinated status to use the on-site gym was also upheld.  See Ontario Power Generation and Power Workers Union (OPG-P-185), Re, 2021 CarswellOnt 18220. A similar conclusion regarding the cost for testing was reached by arbitrator Stout in a Hydro One Inc. and Power Workers Union.
  • On November 20, 2021, the Ontario Superior Court dismissed two applications brought by unions seeking interim injunctions preventing the implementation of mandatory vaccination policies pending the outcome of grievance arbitration proceedings challenging mandatory policies:  Amalgamated Transit Union, Local 113 v. Toronto Transit Commission and National Organized Workers Union v. Sinai Health System
  • On December 7, 2021, the Ontario Labour Relations Board dismissed two duty of fair representation complaints against the Ontario Secondary School Teacher’s Federation for failing to file a timely grievance challenging the Toronto District School Board’s vaccination policy for make out a prima facie case. The Board found that:

 … a duty of fair representation application at the Board is not the place for those who hold anti-vaccine views to make their generalized arguments against the COVID-19 vaccine or vaccination policies as implemented by their employer.

See Sloan v. OSTTF and Di Tommas v. OSTTF