Statutory Holiday Pay During Sick Leave: Grievance Dismissed for Extended Shift Worker
St. Joseph’s Healthcare Hamilton v Canadian Union of Public Employees Local 786, 2025 CanLII 9088 (ON LA) (Parmar, February 7, 2025)
Background
The grievor, a full-time Patient Care Unit Clerk, regularly worked 11.25-hour shifts. She was scheduled to work on Victoria Day, May 23, 2022, but was absent due to illness. The hospital paid her 7.5 hours of statutory holiday pay and 3.75 hours of sick pay, covering her full scheduled shift. However, had the grievor worked that day, she would have received 11.25 hours at time-and-a-half and a 7.5-hour lieu day, in accordance with the applicable provisions of the collective agreement. The union filed a grievance, arguing that the grievor should have received 11.25 hours of sick pay and a 7.5-hour lieu day for the holiday.
Previous Settlement and Arbitration Award
The hospital maintained that the grievor had been properly compensated in accordance with the collective agreement and a 2017 Memorandum of Settlement (MOS) that resolved an earlier union policy grievance concerning holiday coding during sick leave. The MOS was later interpreted in a 2020 arbitration award by Arbitrator Misra, which involved a 7.5-hour employee who was not scheduled to work the holidays in question. The hospital argued that the MOS applied equally to all employees, regardless of shift length or scheduling. The union took the position that the MOS applied only to standard-shift employees and should not affect extended shift workers.
Arbitrator’s Findings
Arbitrator Parmar found that the MOS applied broadly to all employees, as it included the term “employees” without qualification. There was no language in the collective agreement or evidence in the bargaining history between the parties to suggest that extended shift workers were supposed to be excluded from the application of the MOS. Accordingly, the Arbitrator held that the hospital had acted in accordance with both the MOS and the collective agreement in determining the grievor’s entitlements. The grievance was dismissed.
Bill 124 Reopener Implementation – Providing Retroactive Payment to Former Employees
Health Sciences North v CUPE, Local 1623, 2025 CanLII 21169 (ON LA) (Goodfellow, March 13, 2025)
Introduction
The grievances in this case arose from retroactive payments owing to former employees as a result of the Bill 124 reopener decision in Participating Hospitals v CUPE/OCHU & SEIU (Bill 124 Reopener), 2023 CanLII 50888 (ON LA) (Kaplan, Christen, and Herbert, June 13, 2023), commonly referred to as the “Kaplan award”. For some of our earlier reporting on this topic, please see here and here.
Background
The dispute centered on retroactive payments owed to former employees as a result of the Kaplan award, which required “full retroactivity within 90 days” to current and former staff. On July 12, 2023, before the final Implementation Agreement had been reached, the hospital mailed letters by regular mail to former employees requesting responses within 30 days. However, the finalized provincial Implementation Agreement, which was delivered to the hospital on July 19, 2023, required the hospital to provide the notices via registered mail and to provide a 60-day response period.
The union raised concerns about the hospital’s unilateral approach and its failure to amend its process to align with the Implementation Agreement. It filed policy grievances on August 5, 2023, challenging the notices that had been issued to the former employees. The hospital then provided an extended time period for the former employees to file their claims, and did, in the end, process all of them.
The Decision
Arbitrator Goodfellow allowed the grievance, in part, finding there was a breach of the Implementation Agreement. The employer should have amended its process when it was presented with the Agreement, but it did not. However, Arbitrator Goodfellow did not award damages, as he was satisfied that the employer acted in good faith and that all employees who submitted claims, even long after the time required by the Implementation Agreement, were paid.
Grievor Who Chose to Travel During Pandemic Not Entitled to Isolation Pay
Ontario Public Service Employees Union on behalf of its Local 273 v Hamilton Health Sciences Corporation, 2025 CanLII 17244 (ON LA) (Abramsky, February 26, 2025)
Background
This case involved a grievance that originated in 2020 and was filed on behalf of a group of employees, though only one grievor – a Respiratory Therapist – remained by the time of the arbitration. The grievance alleged that the employer violated the collective agreement and relevant legislation by failing to compensate employees required to self-isolate for COVID-19-related reasons.
Facts
The hospital introduced a COVID-19 Self-Isolation Pay Policy in February 2021, retroactive to August 2020. The policy was designed to compensate employees who were required to self-isolate due to workplace or community exposure. However, it explicitly excluded employees isolating due to travel-related exposures, stating in clear terms that such cases would not qualify for paid isolation leave.
The grievor, who travelled frequently to the United States for personal reasons and worked a second job involving international travel, submitted multiple requests for self-isolation pay. Most of the requested absences were linked to travel – either personal or work-related – and, the employer argued, fell outside the eligibility criteria under the Policy.
Key Issues and Decision
The union sought to argue that the Policy itself was arbitrary and unreasonably applied, particularly in the case of the grievor who had travel obligations related to a secondary job. However, the Arbitrator found that these arguments amounted to an improper expansion of the original grievance, which had merely alleged non-payment of compensation and did not challenge the reasonableness or fairness of the Policy itself.
The Arbitrator found the Policy to be reasonable in both substance and application. It aligned with public health guidance and aimed to protect vulnerable hospital patients and staff. The exclusion of travel-related isolation was appropriate given that such travel was voluntary and carried known risks. The arbitrator further noted that entitlement to compensation must stem from statute, the collective agreement, or the policy. As the policy clearly excluded travel-related self-isolation, no entitlement existed in these circumstances.
HRTO Upholds Employer Vaccination Policies Against Creed-Based Challenges
Introduction
The Human Rights Tribunal of Ontario (HRTO) recently issued several decisions addressing human rights complaints related to COVID-19 vaccination policies in the workplace. In these cases, applicants alleged that such policies infringed on their rights under the Ontario Human Rights Code, often citing “creed” as a protected ground. The Tribunal dismissed each of the applications, finding that the Code does not extend protection to personal preferences or beliefs that do not amount to a creed under the Code.
The Decisions
In Kuehn v. Joseph Brant Hospital, 2025 HRTO 450 (CanLII) (Hotrum, February 19, 2025), the applicant alleged that her termination for failing to comply with the hospital’s vaccination policy constituted discrimination on the basis of creed, citing their religion.
In terms of what “creed” means under Code, the Tribunal provided as follows:
[10] Although the Code itself does not define creed, the Tribunal has found that the description of the ambit of the right to be free from religious discrimination, as set out by the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, applies equally to creed under the Code. Specifically, provided that an individual demonstrates that they sincerely believe that a certain practice or belief is experientially religious in nature in that it is either objectively required by the religion, or that they subjectively believe that it is required by the religion, or that they sincerely believe that the practice engenders a personal, subjective connection to the divine or to the subject or object of their spiritual faith, and as long as that practice has a nexus with religion, it should trigger protection.
[11] However, not every belief, opinion, expression, practice, or matter of conscience is a creed under the Code. In Barker v. St. Elizabeth Health Care, 2016 HRTO 94 (“Barker”), the Tribunal explained that the Code’s protection against religious discrimination only covers certain significant aspects of an individual’s religious beliefs or practices and not every personal manifestation of an individual’s creed engages the Code’s protection.
[12] The Tribunal has also consistently held that where there is a question as to whether a particular practice or belief has a nexus with creed under the Code, the applicant must provide something more than their own subjective belief, that establishes a connection between the practice or belief in question and the applicant’s claimed creed. As noted in Barker and L.L. v. Dollarama Inc., 2022 HRTO 974, this is not about doubting the sincerity of an applicant’s personal, subjective belief, but having some basis to support a conclusion that the belief is rooted in religion or has a nexus to religion.
[13] It should also be noted that the Tribunal has previously held that a singular belief objecting to the COVID-19 vaccine, no matter how sincerely held, does not fall within the jurisdiction of the Code. See for example Cala v. Sheridan College, 2022 HRTO 1016, Roberts v. Alpa Stairs Railing, 2023 HRTO 1772, and R.W. v. Lambton (County), 2024 HRTO 151. I agree with the above-noted findings with respect to the scope and nature of creed-based protections under the Code.
Based on the facts in this case and further analysis, the Member found that the applicant had failed to provide sufficient evidence to establish that her belief against vaccination constituted a creed under the Code. As no Code-protected ground was established, the application was dismissed as being outside the Tribunal’s jurisdiction.
Similar reasoning was applied in Rosevold v. Brockville General Hospital, 2025 HRTO 534 (CanLII) (Hirshhorn, March 4, 2025). The Member emphasized that the applicant’s personal religious beliefs and opposition to COVID-19 vaccination did not amount to a creed. The Tribunal reiterated that a “creed” must be a comprehensive, overarching belief system that governs one’s conduct and worldview – not a singular opposition to a medical procedure.
On the topic of religion as a creed, the Tribunal provided as follows:
[10] In recognizing religion as a form of creed, the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 39 (“Amselem”) stated:
…. (r)eligion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
In another case, Ziemba v. The Royal Ottawa Health Care Group, 2025 HRTO 738 (CanLII) (Barker, March 21, 2025), the applicant provided as follows in support of their position that they could not comply with the employer’s COVID-19 vaccination policy for creed-based reasons:
[9] In their submissions to the Request, the applicant states about their creed that, “I was born and raised in a Roman Catholic family. I was baptized at Saint Stanislaus church in Toronto. I had my Holy communion in the same church. I Attend Sunday school at the same church. I was married in the united church in Toronto. I still attend church to this date. I do have a strong belief in religion and God. I believe the trial vaccine did not stop infection as advertised. It was up to the Royal to prove to me that they were safe and in fact effective. They did not provide me with that information.”
Overall, the Tribunal found that the applicant did not explain why their creed would prevent them from complying with the employer’s COVID-19 vaccination policy, and dismissed the application on this basis.
A series of companion decisions – Fleman v. Bayshore Healthcare Ltd., 2025 HRTO 607 (CanLII) (March 10, 2025); Riley v. Bayshore Healthcare Ltd., 2025 HRTO 615 (CanLII) (March 11, 2025); MacDonald v. Bayshore Healthcare Ltd., 2025 HRTO 622 (CanLII) (March 11, 2025); and Miller v. Bayshore HealthCare Ltd., 2025 HRTO 624 (CanLII) (March 11, 2025) – all decided by Vice Chair Ghanam, further affirmed that general objections to vaccines and COVID-19 public health measures on the basis of personal beliefs do not amount to a creed under the Code. The Tribunal in these cases noted the absence of any evidence that the applicants’ beliefs regarding vaccines were part of a recognized religious or creed-based framework.
Takeaways
- Personal beliefs are not necessarily protected: The HRTO confirmed that personal opposition to vaccination does not, on its own, amount to a “creed” under the Human Rights Code.
- Creed must be more than a single belief: To qualify, a creed must be a comprehensive and governing belief system—not a singular stance on a medical issue.
- Applicants must provide evidence: The onus is on the applicant to demonstrate a sincerely held belief that meets the legal definition of a creed.
- Vaccination policies remain defensible: Well-drafted and consistently applied workplace vaccination policies continue to withstand human rights challenges.
- Reprisal claims also dismissed: Allegations of reprisal were rejected where no Code-protected activity or retaliation was established.
Conclusion
These decisions reinforce that while the Code provides robust protections against discrimination on Code-protected grounds, it does not necessarily insulate employees from the consequences of failing to comply with workplace health and safety policies. Employers should continue to ensure that such policies are clearly communicated, reasonably justified, and applied in a manner that accommodates legitimate Code-protected grounds.
OLRB Confirms Sexual Assault Can Constitute Workplace Violence
Ontario Nurses’ Association v A Director under the Occupational Health and Safety Act, 2025 CanLII 14562 (ON LRB) (Kugler, January 17, 2025)
In a significant decision, the Ontario Labour Relations Board held that a sexual assault by a physician against a hospital employee met the OHSA’s definition of “workplace violence.” The Board found the conduct – grabbing and squeezing the employee’s breast without consent – involved physical force that could have caused injury. It emphasized that workplace violence and harassment are not mutually exclusive and that contextual factors such as power imbalance and location matter. The ruling underscores the importance of employers assessing workplace sexual misconduct for potential physical harm under OHSA obligations. Please see our full article on this case here.
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