Court Affirms Discipline May Follow Vaccine Policy Breaches
Humber River Health v. Teamsters Local Union No. 419, 2025 ONSC 2270 (Ont. Div. Ct.) (May 06, 2025)
Overview
In a recent and highly anticipated decision, the Divisional Court clarified that blanket findings that discipline for vaccine non-compliance is never permissible go too far. The case provides important guidance for employers and arbitrators navigating COVID-19 policy enforcement.
Background
In the original decision, Arbitrator Parmar determined whether Humber River Health had just cause to terminate two employees who refused to comply with its mandatory COVID-19 vaccination policy. The employees were placed on unpaid leave for two weeks before being terminated. While the arbitrator found that the policy itself was reasonable, she concluded that any discipline for non-compliance with a mandatory vaccination policy was impermissible – relying on general principles of medical consent rights developed outside the pandemic context – and ordered reinstatement. We previously reported on this case here and here.
The Hospital sought judicial review of the arbitrator’s decision.
Hospital’s Position
The Hospital argued that the decision was unreasonable on five grounds:
- Incoherent and irrational findings;
- Disregard for arbitral and judicial precedent;
- Ignoring the legislative and regulatory framework;
- Failure to consider the factual context; and
- Conclusions were unsupported by the evidence.
Union’s Position
The Union argued that the decision was reasonable, asserting that based on medical consent case law, a refusal to comply with a reasonable vaccination policy was not culpable misconduct that warranted discipline, and that termination required a higher standard of justification.
Court’s Decision
The Court found that the arbitrator’s categorical conclusion that an employee can never be disciplined for refusing vaccination was both “unnecessary and unreasonable.” The Court provided as follows in this regard:
[55] In finding that non-compliance with a mandatory vaccination policy can never be met with discipline… the Arbitrator failed to engage in any balancing of Humber’s duty to protect its patients, staff and visitors against the significant health and safety risks associated with the COVID-19 virus as required by KVP and Irving.
…
[64] I conclude that there was an arbitral consensus at the time of the Arbitrator’s Decision and that the Arbitrator departed from this consensus and provided no compelling reason for doing so.
Despite these findings, the Court nevertheless agreed with the arbitrator that the appropriate remedy in this case was reinstatement, rather than termination. This was because the employees had only been on an unpaid leave for two weeks, which was too short a period to support dismissal. As such, reinstatement was not unreasonable, and no rehearing was ordered.
Significance
While the reinstatements stood, the Court clarified that non-compliance with a reasonable mandatory vaccination policy can justify discipline. The decision aligns Ontario jurisprudence with arbitral consensus established in cases like Lakeridge Health v. CUPE, Local 6364, 2023 CanLII 33942 (ON LA) and Central West LHIN v. CUPE, Local 966, 2023 CanLII 58388 (ON LA), reinforcing the enforceability of such policies in healthcare settings.
Arbitrator Upholds Termination of Most Unvaccinated Hospital Workers, But Faults Blanket Approach
Ontario Shores Centre for Mental Health Sciences v Ontario Public Service Employees Union, Local 331, 2025 CanLII 70376 (ON LA) (Wright; July 18, 2025)
Overview
Arbitrator Wright upheld the termination of eight of ten hospital employees who failed to comply with the employer’s mandatory COVID-19 vaccination policy.
Background
In September 2021, Ontario Shores implemented a mandatory COVID-19 vaccination policy. Employees were required to be fully vaccinated by October 25, 2021, failing which they were to be placed on unpaid leave and subject to discipline, up to and including termination. The Union conceded the policy was reasonable at all relevant times.
The Centre terminated 21 employees in December 2021 for non-compliance, including the ten grievors. Seven were placed on unpaid leave as of October 25, 2021, and terminated six weeks later. The remaining three included one employee who was on leave pending the outcome of a WSIB claim and two employees who were returning from approved medical and maternity leaves. These three were terminated shortly after their return or scheduled return to work.
Decision
Arbitrator Wright dismissed eight of the ten termination grievances, including the grievance of the employee who had been on leave pending the outcome of the WSIB claim. He found that these grievors had received clear warnings and had been given a sufficient opportunity to comply with the policy. There was no evidence that any of them intended to become compliant.
However, the arbitrator found that two of the terminations were not supported by just cause. Neither the employee returning from maternity leave nor the employee returning from medical leave had received adequate or reliable notice of the policy’s consequences, and the Centre had not considered their individual circumstances before proceeding with termination. The issue of remedy for these two employees was remitted to the parties.
Grievance of Non-Disciplinary Termination of Social Worker for Incompetence Allowed
St. Joseph’s Health Care London v Ontario Public Service Employees’ Union, 2025 CanLII 57026 (ON LA) (Price; June 11, 2025)
Correction Notice: An earlier version of this case summary published on August 1, 2025 contained inaccuracies and has been replaced with a corrected version on August 22, 2025.
Overview
Arbitrator Price allowed a grievance challenging the non-disciplinary termination of a long-serving registered social worker for incompetence on the basis that the employer had failed to satisfy the legal test for terminations of this nature.
Background
After the grievor transferred to the Cardiac Rehabilitation program, concerns emerged regarding her clinical judgment, documentation practices, and understanding of her professional role. The hospital conducted a chart audit and direct observation of her patient sessions, both of which revealed significant deficiencies in clinical care and record-keeping, such as failure to assess suicide risk, inadequate treatment planning, and improper documentation of patient consent. Based on the foregoing, the hospital discharged the grievor on a non-disciplinary basis for incompetence.
The Legal Test for Non-Disciplinary Discharges
The union grieved the discharge. The union argued the discharge was invalid because the employer had not satisfied the test that applies to non-disciplinary discharges. Namely, the so-called “Edith Cavell” test, which is detailed in the decision as follows:
[136] In order to establish that it had just cause to discharge an employee for non-culpable deficient work performance, it is well established that an Employer bears the onus of satisfying the following test from Edith Cavell Private Hospital, (1982) 1982 CanLII 5068 (BC LA), 6 L.A.C. (3d) 229 (Hope) (“Edith Cavell”) at p. 233:
- The Employer must define the level of job performance required.
- The Employer must establish that the standard expected was communicated to the employee.
- The Employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard.
- The Employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee.
- The Employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal.
Decision
The arbitrator agreed with the union and allowed the grievance, finding that the employer had failed to satisfy the third, fourth and fifth branches of the Edith Cavell test. Specifically, the employer had failed to make reasonable efforts to find alternate employment within the competence of the employee, to give the grievor reasonable instruction and supervision aimed at helping her improve her work performance, and to warn the grievor of the risk of dismissal. The non-disciplinary termination was therefore invalid.
The arbitrator ordered reinstatement and that the grievor be made whole with respect to lost wages.
Occupational Health Nurse Role Falls Outside the Bargaining Unit
Royal Ottawa Health Care Group v Canadian Union of Public Employees and Its Local 942-00, 2025 CanLII 61644 (ON LA) (Albertyn; June 24, 2025)
Overview
Arbitrator Albertyn dismissed a grievance challenging the exclusion of an Occupational Health Nurse (OHN) position from the CUPE bargaining unit at a mental health hospital.
Background
The grievor, a registered practical nurse (RPN), had been hired into the OHN role after the hospital was unable to fill the position with a registered nurse (RN). CUPE argued that because the grievor was an RPN performing non-managerial work, the position should be included in its bargaining unit.
Decision
The arbitrator disagreed with the union. He found that the OHN exercised significant discretion in handling employee absences, medical leaves, WSIB claims, and return-to-work accommodations. The OHN assessed medical documentation, made effective recommendations to management, represented the employer in WSIB proceedings, and advised on complex labour relations matters. These responsibilities aligned the OHN with management interests, creating a conflict of interest with union membership.
The arbitrator concluded that the OHN exercised managerial functions and was employed in a confidential labour relations capacity, meeting both grounds for exclusion under the Labour Relations Act, 1995. The grievance was dismissed.
Weekend Premium Clause Does Not Override Seniority Provisions
North Bay Regional Health Centre v Canadian Union of Public Employees, Local 139, 2025 CanLII 51618 (ON LA) (Kelly; June 06, 2025)
Background
Arbitrator Kelly upheld a union policy and individual grievance concerning the allocation of weekend shifts to part-time employees. The dispute arose after the Hospital bypassed a senior part-time employee for a weekend call-in shift to avoid triggering a three-consecutive-weekend premium under the collective agreement. The shift was instead assigned to a more junior casual employee.
Parties’ Positions
The Hospital argued that avoiding the weekend premium aligned with the collective agreement, which discourages scheduling employees for three or more consecutive weekends. The Union maintained that the collective agreement required the Hospital to offer additional shifts to part-time employees in order of seniority, up to their 75-hour biweekly maximum, regardless of any associated premium.
Decision
The arbitrator agreed with the Union, finding that the collective agreement clearly required the shift to be offered to the most senior eligible part-time employee. He rejected the Hospital’s interpretation of the agreement as a basis to override the unambiguous seniority rights contained therein, noting that nothing in the agreement permitted such a carve-out. The grievance was allowed.
Arbitrator Finds Procedural Breaches in Redeployment, Dismisses Individual Grievances
Halton Healthcare Services Corporation v Canadian Union of Public Employees, Local 815, 2025 CanLII 66858 (ON LA) (Abramsky; June 23, 2025)
Background
Arbitrator Abramsky addressed a policy grievance and two individual grievances arising from the closure of a 40-bed Internal Field Hospital at Oakville Trafalgar Memorial Hospital in March 2024. The Union alleged that the Hospital violated multiple provisions of the collective agreement, particularly around notice, redeployment, and reassignment processes.
Decision
In terms of the policy grievance, the arbitrator found that the Hospital breached the collective agreement by failing to provide the required five months’ notice to the Union regarding the elimination of positions and by not maintaining the status quo for two Unit Clerks who were not reassigned. The Hospital also failed to disclose future potential vacancies to the Redeployment Committee as required. However, the arbitrator concluded that the truncated redeployment timeline did not deprive the Union of a meaningful opportunity for consultation, and that the Hospital did not improperly implement unilateral reassignments.
Although the arbitrator found breaches of the collective agreement, no damages were awarded, as the parties had agreed to seek declaratory relief only.
The two individual grievances were dismissed. The arbitrator found that the first grievor, a casual Unit Clerk, was appropriately reassigned pursuant to the collective agreement, despite the Union’s concerns about reduced shift opportunities. Similarly, the reassignment of the second grievor, an Environmental Services Helper, from a 1 p.m.–9 p.m. shift to a 4 p.m.–12 a.m. shift was deemed “substantially similar,” satisfying the agreement’s criteria.
Lab Technicians’ Injury Claims Dismissed; Safety Allegations Permitted to Continue – Interim Award
Kingston Health Sciences Centre v Ontario Public Service Employees’ Union, Local 4106, 2025 CanLII 67201 (ON LA) (Johnston, July 10, 2025)
Overview
The union filed grievances on behalf of two lab technicians following an August 2023 construction incident in the Core Laboratory, where cutting into a chemically treated countertop allegedly released toxic wood dust into the air. The technicians claimed they were exposed and experienced symptoms as a result.
Parties’ Positions
The union alleged that the hospital failed to take reasonable precautions under the Occupational Health and Safety Act (OHSA) and the collective agreement, citing delayed disclosure of safety data and unsafe working conditions. It sought damages for mental distress and the hospital’s post-incident response. The hospital argued that the Workplace Safety and Insurance Act (WSIA) barred the arbitrator from awarding damages, as the claims related to a compensable workplace injury.
Decision
Arbitrator Johnston agreed with the hospital, finding the claims for damages fell within the exclusive jurisdiction of the WSIB, and dismissing them on this basis. However, he rejected the hospital’s argument that the grievances were moot and allowed the union to proceed in seeking declaratory relief regarding the alleged OHSA and collective agreement breaches.
Employer’s Management Rights Affirmed in Environmental Services Work Assignment Dispute
Mackenzie Health v Ontario Public Service Employees Union, Local 374, 2025 CanLII 69514 (ON LA) (Harris; July 18, 2025)
Arbitrator Harris dismissed a grievance from a full-time Environmental Services employee who sought a lateral transfer to less physically demanding duties on the same shift. The employer declined, citing the collective agreement’s line selection provision, which applies only to shift hours, not specific duties, in non-clinical areas.
The arbitrator found no violation of the agreement, no evidence of a disability requiring accommodation, and no breach of the Occupational Health and Safety Act. The grievance was dismissed, and the employer’s assignment decision was upheld as a valid exercise of its management rights.
Human Rights Tribunal Issues Two Rulings on COVID-19 Vaccine Refusal: One Claim Dismissed, One Creed Claim Allowed to Proceed
In two recent decisions, the Human Rights Tribunal of Ontario addressed applications brought by nurses who alleged discrimination following their refusal to comply with mandatory COVID-19 vaccination policies implemented by their respective hospitals.
Tonigussi v. Niagara Health, 2025 HRTO 1608 (Morton; June 27, 2025)
The applicant alleged discrimination on the grounds of creed, disability, association, and reprisal after her employment was terminated for non-compliance with Niagara Health’s vaccination policy. The Tribunal dismissed the application in its entirety, finding that the applicant failed to provide a factual basis linking her beliefs to a recognized creed under the Human Rights Code. Her assertions amounted to a singular belief in medical autonomy and vaccine skepticism, which the Tribunal found insufficient to meet the threshold for creed protection. The Tribunal also found no evidence that her anxiety constituted a disability that prevented vaccination, nor any basis for her claims of reprisal or discrimination by association.
Stevenson v. Woodstock General Hospital Trust, 2025 HRTO 1535 (McNair; June 19, 2025) – Interim Decision
The applicant alleged discrimination on the grounds of creed, disability, association, and reprisal. The Tribunal dismissed all claims except the allegation of discrimination based on creed. The applicant described her beliefs as rooted in Judeo-Christian ideology, specifically opposing vaccines derived from research involving aborted fetal stem cells. The Tribunal explicitly made no findings regarding the merit of this assertion. However, the Tribunal found the assertion sufficient to engage the Code’s protection of creed and allowed that aspect of the application to proceed against the hospital. However, the Tribunal dismissed the claims against the Ontario Nurses’ Association and the Ministry of Health, finding no factual basis linking their conduct to the applicant’s creed. The allegations of disability, association, and reprisal were also dismissed due to lack of evidence and failure to comply with case management directions.
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