Healthcare Update – June 2024

a)   Mandatory Vaccination – Objection to vaccinations is not a creed

Thompson v. University Health Network (HRTO, Keith, Member, May 29, 2024)

The Applicant alleged that the Hospital discriminated against him on the basis of creed when it refused to grant him an exemption to the Hospital’s vaccination policy.

The main issue in this case was whether the Applicant in fact had a creed that was subject to the HRTO’s jurisdiction. The Applicant described his creed as a “theological creed… based on a theistic belief in God, faith in his power and belief that my actions define who I am”. The Applicant testified that he “holds dear” bible passages concerning “the body being a temple, God’s gift of natural herbs for the service of man, and the condemnation of force, manipulation, and undue influence over others.”

The Tribunal set out the Amselem test from the leading Supreme Court of Canada jurisprudence to assess whether a set of beliefs amounts to a creed:

  1. An individual is not required to establish the objective validity of their belief system. The emphasis is on personal choice. An individual does not have to show that their beliefs are recognized by others or by doctrine.
  2. Voluntary and obligatory expressions of belief are protected. This approach is consistent with the emphasis on personal choice.
  3. Sincerity of belief refers to the honesty of the belief, not whether it is a true or valid expression of belief.
  4. The analysis should focus on the individual’s belief at the time they claim their human rights because an individual’s belief system may evolve over time.
  5. Expert evidence that the individual’s belief is consistent with the practices and beliefs of other adherents of the belief system is not required. The emphasis is on what the individual affirms is required.
  6. An individual must show that their belief system requires particular behaviour or conduct, namely the behaviour or conduct for which they seek protection.

The Tribunal found that the Applicant’s beliefs did not amount to a creed pursuant to the Amselem criteria. The Applicant did not explain how his beliefs are linked to his identity, self-definition or fulfilment, or how they address ultimate questions of human existence. Furthermore, the Applicant did not identify objective religious precepts preventing him from becoming vaccinated.

Furthermore, other objections that the Applicant had to vaccination – namely, the experiences of his family member and his belief in herd immunity – did not amount to a creed.

While the Applicant claimed that his objections to vaccination had a nexus to the church in which he was baptized, the Applicant does not identify as Christian or identify with any particular religion.

The Application was dismissed for lack of jurisdiction.

b)   Vaccination Policy – Refusal to vaccinate not protected by creed

Kent v. The Ottawa Hospital (HRTO, Gabor, Member, May 30, 2024)

The Applicant alleged that he was forced to retire as a result of the Hospital’s mandatory vaccination policy. He alleged that he faced discrimination on the basis of creed.

The Applicant submitted that his creed was “a firmly held set of beliefs that the vaccine was dangerous to his well being and his life as it was rushed, untested, unproven and experimental in nature.” The Tribunal stated that a singular belief objecting to the COVID-19 vaccine does not amount to a creed.

The Tribunal further found that the Applicant was not subject to a reprisal, as the Hospital’s treatment of the Applicant was not related to the Applicant’s enforcements of his rights under the Human Rights Code.

The application was dismissed.

c)   Related Employers – Request to dismiss denied due to possible transfer of business

Ontario Nurses’ Association v The Ottawa Hospital (OLRB, Liznick, June 6, 2024)

ONA and CUPE alleged that the Ottawa Hospital and the Academic Orthopedic Surgical Associates of Ottawa (“AOAO”) are related employers.

AOAO uses the Hospital’s facilities to perform certain knee and hip replacement surgeries on weekends. Their patients come into the hospital for pre- and post-operative appointments by the Hospital’s regular staff.

ONA alleges that AOAO is an associated entity to the Hospital, and is depriving ONA’s members of work on the weekends.

The Hospital sought to have the application dismissed, claiming that ONA failed to establish a prima facie case. The Board declined to dismiss ONA’s application, finding that ONA had established a prima facie case for a related employer. To establish a prima facie case, ONA had to show:

  1. There is more than one corporation, individual, firm, syndicate or association involved;
  2. The employers concerned carry on related or associated activities or business;
  3. The activities or businesses are under common control or direction; and
  4. A labour relations purpose for making a related employer declaration.

The Board found that the arrangement between the Hospital and the AOAO was unique, and that it was possible that the Hospital had transferred part of its business. The Board found that ONA should not be deprived of the opportunity to make its case, and declined to dismiss the application.

d)   Mandatory Vaccination – Just cause for termination not established

London Health Sciences Centre v Unifor Local 27 (Wright, May 30, 2024)

The main issue in this case was whether there was just cause to terminate the Grievor’s employment. The reasonableness of the mandatory vaccination policy was not challenged. The policy required all staff to present proof of vaccination by October 22, 2021. The policy expressly stated that failure to comply with the policy may result in discipline up to and including termination of employment. The Grievor communicated to the hospital that she did not intend to become vaccinated.  After a fact-finding meeting on October 15, 2021, she was informed that her employment would be terminated on October 22, 2021, for non-compliance with the policy.  The termination of the Grievor’s employment occurred on that date.

Arbitrator Wright reviewed the prior arbitral jurisprudence.  Prior to the release of his decision, the parties provided written submissions regarding the decisions issued by arbitrator Hayes and Parmar in Quinte Health and Humber River Hospital.  These cases were reviewed in our March 2024 Healthcare Update and called into question whether disciplinary terminations for non-compliance with mandatory vaccination policies were reasonable, despite prior arbitration decisions to the contrary.

Arbitrator Wright disagreed with arbitrator Parmar in Humber River and distinguished the cases relied on in her analysis that found that employees could not be disciplined for refusing to undergo medical procedure.  Arbitrator Wright found that the extraordinary circumstances of the Covid-19 pandemic required a different analysis.  He ultimately concluded that a breach of the vaccination policy could provide ground for discipline on a just cause basis.

On the facts before him, arbitrator Wright concluded that the hospital had not established just cause for termination because there was no progressive discipline prior to the termination of the Grievor’s employment. He found that the prior warnings and communications from the hospital that articulated the consequence for non-compliance were not a substitute for progressive discipline which is intended to give employees time to reflect on the consequences of their continued non-compliance.

Arbitrator Wright ordered reinstatement and substituted a 30-day suspension for termination but did not order compensation or address the future of the Grievor’s employment with the hospital:

  1. With no just cause for discharge and a 30-day suspension being substituted as appropriate instead, ordinarily that would mean, along with reinstatement, that a Grievor would be entitled to damages representing the lost wages from the date of termination to the date of reinstatement. However, for the following reasons, I find that is not appropriate. First, the Policy requiring vaccination in order to work was and remains in place without interruption. Second, the Union concedes that the Policy is reasonable. Third, the Grievor remains unvaccinated. Fourth, the Grievor gave no indication that she would have chosen to become vaccinated had she been suspended for the 30 days, stating that she is comfortable in her choice. In the circumstances, therefore, the Grievor has suffered no economic loss for which the Employer can be held responsible. There is, therefore, no basis for the payment of any damages.

  2. Finally, there arises the question of the Grievor’s status upon reinstatement. For the reasons just given, she obviously cannot work. As I agree with the cases that say an employee cannot remain on unpaid leave indefinitely, … and as I have expressly found a 30-day suspension to be appropriate, the Grievor’s continuing employment status would appear to be highly precarious to say the least. However, I will leave that to the parties to sort out.

e)   Job Posting Grievance – Grievor not entitled to new position within 6 months of last posting

Kingston Health Sciences Centre v Canadian Union of Public Employees, Local 1974 (Albertyn, June 3, 2024)

The Hospital appointed the less senior of two applicants to a job posting. The Union filed a grievance claiming that the position should have been awarded to the Grievor, the more senior employee.

The Grievor had posted into her current role less than 6 months prior to applying for the role at issue. The collective agreement contained a clause stating,

In matters of promotion and staff transfer appointment shall be made of the senior applicant able to meet the normal requirements of the job. Successful employees need not be considered for other vacancies within a six (6) month period unless an opportunity arises which allows the employee to change his or her permanent status.

The Union claims that the Hospital ought to have waived this clause for the Grievor. The Union argued that a posting into a higher paid position would constitute a “change in permanent status” within the meaning of the clause.

Arbitrator Albertyn found that a promotion did not constitute a “change in permanent status” within the meaning of the clause. The clause refers to employment status, as a temporary, permanent, part-time, casual, or full-time employee. It does not refer to promotion or amount of compensation.

As posting into the new position would not have affected the Grievor’s permanent employment status, so the Hospital was entitled to rely on the clause and award the job to the less senior employee. The Hospital’s decision not to waive the clause was based on genuine operational concerns and was not arbitrary.

The grievance was dismissed.

f)    Mandatory Vaccination – Policy is reasonable and termination is appropriate outcome for failure to comply

National Organized Workers Union (NOWU) v Humber River Hospital (Tremayne, June 6, 2024)

The grievances challenged two policies that the Hospital had put in place during the Covid-19 pandemic.

The first impugned policy, implemented in August 2021, required all staff, physicians, and volunteers (“SVPs”) to either provide proof of vaccination or a medical exemption from vaccination or to attend regular education sessions about the benefits of vaccination. Employees who opted for the latter option had to undergo twice-weekly testing for Covid-19. The Union claimed that this policy was unreasonable, as governmental directives at the time only required testing to occur once every 7 days.

The second impugned policy, implemented in December 2021, required all Hospital employees to provide proof of vaccination or a valid medical exemption. Employees no longer had the alternative option of education and regular testing. Non-compliance with the mandatory vaccination policy could result in discipline up to and including termination.

Arbitrator Tremayne found that the Hospital complied with its procedural duty to consult with the Joint Health and Safety Committee. He also found that the Hospital fulfilled its duty to bring the policies to the attention of its employees. Arbitrator Tremayne found that the portions of the collective agreement that specifically referenced influenza vaccinations did not apply to Covid-19 vaccinations.

Arbitrator Tremayne determined that the vaccination policies would be upheld if the Hospital could show that they were reasonable using a “balancing of interests” test.

The Union identified five objections to the Hospital’s mandatory vaccination policy:

Objection #1: The Hospital failed to demonstrate that a valid safety purpose was served by requiring all employees to be vaccinated or face termination of employment. The Union argued that the Hospital effectively managed the pandemic prior to the introduction of the mandatory vaccination policy, that uptake in vaccination prior to the introduction of the policy was around 90% in the Hospital, and that the vaccine wasn’t as effective as originally thought. The Union claimed that this made the policy unreasonable.

Arbitrator Tremayne found this objection was not persuasive, as there is material evidence that the vaccines “materially lower the risk of severe illness, hospitalization, and death from contracting the virus.” Perfection is not a reasonable standard in these circumstances.

Objection #2: The Hospital put employees at risk of harm by requiring them to receive an experimental vaccine with harmful side effects.

Arbitrator Tremayne found that the vaccines are safe and effective. The Union’s second objection was not persuasive.

Objection #3: The Hospital did not conduct any due diligence when implementing the policy. It did not consider that vaccines were not as effective as first thought, that case counts continued to rise despite increased vaccination, or that some employees experienced severe reactions to the vaccine. The Union claimed that the Hospital did not consider overall risk reduction.

Arbitrator Tremayne found that the Hospital had closely monitored the progress of the pandemic, and that the implementation of the mandatory vaccination policy was “slow and deliberate”. The Hospital acted reasonably in implementing its process.

Objection #4: The Hospital failed to properly implement other successful prevention measures, including masking and screening for visitors. The Hospital exceeded its legal mandates without properly exploring other options.

Arbitrator Tremayne found that the Union’s evidence of lax enforcement of certain measures“ likely did not reflect the day-to-day conditions at the Hospital”. Furthermore, though the goal of avoiding administrative burden was not the main driving factor behind the implementation of the mandatory vaccination policy, even the minimum weekly testing requirements for unvaccinated employees allowed under law created a significant administrative burden for the Hospital.

Objection #5: The Hospital violated the employees’ rights to medical privacy and autonomy, with serious disciplinary consequences.

Arbitrator Tremayne noted that special considerations arise in the context of acute care settings. “The Hospital has a duty to ensure that its patients are not harmed by its employees, and protecting patients is one of the key justifications for requiring Hospital employees to receive other vaccinations.” Patients at the Hospital are at risk of severe illness and death from diseases such as COVID-19, and physical distancing is not always possible.

The choice to work at a hospital comes with “certain responsibilities,” including “complying with reasonable measures that the Hospital has decided are necessary to protect its patients and employees.” The employees’ individual hardships are weighted against “the Hospital’s duty to protect its patients, many of whom have no choice about receiving treatment at the Hospital, or from whom they receive that treatment, or with whom they come into direct or indirect contact at the Hospital”. The balance of interests favours the protection of patients’ safety.

Arbitrator Termayne concluded that the mandatory vaccination policy was reasonable and that “termination of employment as a disciplinary response to not complying with a mandatory vaccination policy is a reasonable measure.”

g)   Mandatory Vaccination – Termination for non-disciplinary reasons is appropriate outcome for failure to comply

Ontario Public Service Employees Union, Local Unit 461 v. Hawkesbury and District General Hospital (Flaherty, June 10, 2024) (in French)

The union did not challenge the reasonableness of the mandatory vaccination policy.  The only issue in dispute was the termination of the Grievor’s employment for non-compliance. The Grievor was pregnant at the time the vaccination policy was implemented and strongly expressed her objection to the vaccine which she considered to be illegal and unconstitutional. After a lengthy administrative leave, the hospital terminated the Grievor’s employment on March 22, 2022, because the refusal to comply with the policy and assist the hospital with fulfilling its duty to protect the health and safety of staff and patients undermined the employment relationship.

Arbitrator Flaherty reviewed the prior arbitral jurisprudence, which included Quinte Health and Humber River Hospital. However, Arbitrator Flaherty did not engage with these decisions as she concluded that the Grievor was terminated for non-disciplinary reasons [translated using Google Translate]:

  1. I consider that at the time of the Complainant’s dismissal, it was reasonable for the Hospital to conclude that she would be incapable, in the reasonably foreseeable future, of fulfilling the fundamental obligations associated with the employment relationship. The Complainant has been clear and consistent in her firm intention not to be vaccinated.
  2. The circumstances of the pandemic were fluid and it was very difficult for any employer to discern the “reasonably foreseeable future.” However, in terminating the Complainant’s employment more than six months after the Policy was introduced, the Hospital took a measured approach. It initially placed the Complainant on unpaid leave for more than four months and repeatedly informed her that her employment was at risk. While not determinative, it is telling that the Hospital’s Policy remains in place and the Complainant remains unvaccinated or unable to work at the Hospital to this day.
  3. Although she was informed that failure to comply with the Policy could result in termination of her employment, Complainant firmly indicated that she was not willing to be vaccinated. The fact that the Complainant has approximately eight years of service and a clean disciplinary record does not change the fact that in the reasonably foreseeable future, she would still not be able to fulfill the fundamental obligations of her position.

The grievance was dismissed.