Since our January update, three new arbitration cases have been published regarding mandatory vaccination policies. In all three cases, the consequences for non-compliance at the relevant time were non-disciplinary suspensions. The policies were upheld as reasonable.
- On March 15, 2022, arbitrator Matthew Wilson found that Purolator Canada’s mandatory vaccination policy was reasonable for a workforce that performed work indoors in shipping centres and operations facilities and in enclosed vehicles. The workers were also in regular contact with customers and the public. Further, some of Purolator’s major clients had vaccination requirements for anyone coming on site. Teamsters Local Union 938 and Purolator Canada Inc. Please see our more detailed summary.
- On March 17, 2022, arbitrator Mark Wright upheld the mandatory vaccination policy of Coca-Cola Canada Bottling Limited. Notably, on the date the parties’ submissions were heard, no employee had been disciplined or terminated for failing to comply with the Policy; however, that possibility had been clearly articulated to employees. Arbitrator Wright noted that any employee who is disciplined or terminated for non-compliance with the Policy can file a grievance to challenge that outcome on a just cause basis. Unifor Local 973 v Coca-Cola Canada Bottling Limited. Please see our more detailed summary.
- On March 22, 2022, arbitrator William Kaplan upheld the Toronto District School Board’s (TDSB) policy. Arbitrator Kaplan preferred the evidence of the TDSB’s expert that Rapid Antigen Testing was not an effective alternative to vaccinations. Further, he upheld the policy despite exceptions applied by the TDSB to address essential staffing and process requests for exemptions on human rights grounds. Toronto District School Board v CUPE, Local 4400. Please see our more detailed summary.
To date, only two arbitrators have found policies (or aspects of policies) to be unreasonable.
- 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 February 7, 2022, Arbitrator Gail Misra found that a mandatory vaccination policy that was inconsistent with specific provisions of the collective agreement and provided for automatic discharge of noncompliant employees was unreasonable. Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220. See also our prior publication on this decision.
We have reported on three other arbitration cases where mandatory vaccination policies have been upheld.
- 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 January 4, 2022, Arbitrator Herman found that a mandatory vaccination policy, which required employees to be fully vaccinated or put on unpaid leave, was reasonable. The company’s landlord, Hamilton Oshawa Port Authority, was a federally regulated business that required everyone on its property to be vaccinated. Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175. See our prior publication on this decision.
- On January 12, 2022, Arbitrator Jesin upheld a vaccine mandate requiring employees working at Scotiabank Arena to disclose their vaccination status or be placed on an unpaid leave of absence. The union did not challenge the vaccine mandate, only the requirement that employees share their vaccination status. Arbitrator Jesin found that the requirement was reasonable, particularly in workplaces where employees work in close proximity, and where there is no means to enforce a reasonable vaccine mandate without disclosing vaccination status: Teamsters Local Union 847 v Maple Leaf Sports and Entertainment. See our prior publication on this decision.
These arbitration cases are in addition to cases where the Courts have refused to issue interim injunctions to prevent the implementation of mandatory Vaccination Policies:
- 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. Blake v. University Health Network.
- On November 13, 2021, in Lavergne-Poitras , the Federal Court also denied an injunction request brought by an employee impacted by the Federal Government’s mandatory vaccination requirements that applied to suppliers – concluding that the exercise of the choice to vaccinate or not did not violate Section 7 of the Charter.
- 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.