Vaccine Mandate Update – December 2022

As we near the end of 2022, vaccine mandate cases continue to evolve with the ever-changing pandemic. In this article, we provide a brief overview of recent tribunal, arbitral and court decisions related to mandatory vaccination policies since our last update. There are cases regarding creed-based accommodations, more decisions regarding the reasonableness of policies, Court cases confirming the refusal to issue injunctions and cases regarding employment insurance denials.  In 2023 we anticipate more cases about the ongoing reasonableness of policies, and the remedies (if any) for employees terminated or suspended for non-compliance.

Creed-based Exemptions and Accommodations under Mandatory Vaccination Policies

In the following decisions of the Human Rights Tribunal of Ontario (the “Tribunal”) and labour arbitrators, the issue of whether an individual is entitled to a creed-based exemption or accommodation under a mandatory vaccination policy is addressed.

Brown v. Planet Fitness (Dundas) (HRTO)

On September 29, 2022, the Tribunal dismissed an application in which the Applicant alleged discrimination based on creed with respect to goods and services, contrary to the Ontario Human Rights Code (the “Code”). The Applicant claimed that the Respondent, Planet Fitness, discriminated against them when they instituted a mandatory vaccine policy (the “Policy”) that resulted in the Applicant being denied access to the gym.

The Applicant believed they were exempt from the Policy based on their creed, citing the supposed use of fetal cells in the development of various vaccines, as well as their freedom to make decision for their own body. They also indicated that they do not consent to the collection of their personal and private health records.

The Tribunal concluded that the concepts of individual conscience and right to bodily autonomy and privacy, and their application to choose not to be vaccinated or not to share that information with the Respondent, does not meet the definition of creed. This is notwithstanding that the Applicant’s belief may be sincerely, freely and deeply held, and it may be linked to the Applicant’s identity and self-definition. The Applicant’s creed lacked an overarching systemic component, and it did not:

  • Address the question of human existence or that of a Creator;
  • Contemplate life and death; and
  • Form a nexus to any organization or community with a shared system of belief (even with the mention of the Catholic Church – the Applicant did not indicate that he was a member of that faith community).

Ortiz v University of Toronto (HRTO)

The Applicant filed an application claiming discrimination based on creed with respect to employment when their employer, the University of Toronto, instituted a mandatory vaccine policy (the “Policy”). The Applicant stated that:

  • They were denied an exemption to the Policy based on their creed beliefs of “individual privacy, personal autonomy, freedom and informed consent, especially with respect to conventional medicine”;
  • Their creed belief stemmed from their allergic reactions to many different food and chemicals;
  • Their creed is that of an individual choice; and
  • Their creed is a form of political belief system that encompassed “informed consent and personal autonomy in medical decision making”.

The Applicant was eventually placed on an unpaid suspension for failure to comply with the Policy.

Here, the HRTO concluded that the concept of individual choice (here, it was to not be vaccinated), does not meet the definition of creed for reasons similar to those in Brown v. Planet Fitness (Dundas).

Wilfrid Laurier University v United Food and Commercial Workers Union (M. Wright, December 16, 2022)

The Union in this case filed individual grievances alleging a breach of the collective agreement, the Code, and the Canadian Charter of Rights and Freedoms for two (2) grievors who were denied religious exemptions from the mandatory vaccination policy (the “Policy”) of their Employer, Wilfrid Laurier University. The grievors were put on temporary unpaid leaves of absence for their failure to comply with the Employer’s Policy.

In August 2022, we wrote about a preliminary award in which it was found that the Employer’s Policy was reasonable. This decision addressed a second preliminary issue: whether the Union could establish a prima facie case of discrimination based on creed under the Code for either or both grievors.

Arbitrator Wright found that the Union established a prima facie case of discrimination based on creed for both grievors because each of them (1) held a sincere belief, (2) with a nexus to their creed, (3) that in part explains why they chose not to get vaccinated against COVID-19.

a)    Sincere Belief

Arbitrator Wright found that both grievors were devout religious women. They held sincere religious beliefs and tried to live their lives accordingly. This was the case even though one of the grievors, Debbie Pinksen, did not identify herself as a Christian or as a member of the Pentecostal denomination until the hearing. This was because it was clear from her various requests, in which she relied on several scriptural passages, that she was and is a Christian woman.

b)    Nexus to their Creed

Arbitrator Wright also found that both grievors had subjective beliefs with a nexus to their religion that, in their respective views, required them to refrain from becoming vaccinated against COVID-19.

For example, Brenda Lemon stated in her application for a religious exemption that her body is owned by God, and that she is a steward of that body for her time on earth. She also stated that the “immoral vaccine manufacturers” used human fetal tissues in the research and development of the vaccines, and as a child of God, she believes it is wrong to potentially benefit from the “intentional execution of [her] innocent brothers and sisters in the womb”.  Ms. Pinksen also stated that her body belongs to Jesus Christ and that she considers an injection would defile her “temple” and affect her relationship with her Lord.

Notably, Arbitrator Wright stated that the fact that neither the Presbyterian church that Ms. Lemon attends, nor the Pentecostal denomination of which Ms. Pinksen is a member, requires that adherents refrain from getting vaccinated does not, by itself, undermine their respective claims for a religious exemption to the Policy, nor does it suggest that the claim lacks the required nexus to religion.

c)     It explains, in part, why they chose not to get vaccinated against COVID-19

Arbitrator Wright found that both grievors had sincerely held subjective beliefs, with a nexus to their creed, that was a factor in their decisions not to get vaccinated. This was the case despite the following regarding Ms. Lemon:

  • She did not continue with her religious exemption request when she learned it had to be notarized and she sent an email instead, stating that she was not making a religious exemption request and advanced several secular arguments against COVID-19 vaccines and mandates; and
  • She was quite engaged in challenging the Policy on secular grounds.

Arbitrator Wright stated that secular opposition to the Policy does not preclude the possibility of obtaining a religious exemption, but it does suggest that Ms. Lemon was more committed to challenging the Policy on secular grounds than she was on protecting her religious freedom. Nevertheless, he found her to be credible when she testified about the paragraphs that formed the basis of her religious exemption request and he did not believe she simply “latched” on to religious beliefs to obtain a religious exemption to the Policy. He specifically wrote,

99.  I have concluded that Lemon does sincerely believe that her religion precludes her from becoming vaccinated against COVID-19 for the reasons she has explained. She is also adamantly opposed to COVID-19 vaccines and vaccine mandates for secular reasons, but the two sets of beliefs are not inconsistent; rather, for Lemon, the religious and secular reasons for opposing COVID-19 vaccines support one another.

Regarding Ms. Pinksen, she acknowledged that she takes medications when she considers it to be medically necessary and she does not consider the COVID-19 vaccine to be medically necessary. Arbitrator Wright did not find that this spoke to the sincerity of her religious objection to taking a COVID-19 vaccine. Ms. Pinksen testified that she believed her body to be God’s temple which must be guarded against defilement, which Arbitrator Wright found to be consistent with her belief that she should not take medication unless it is medically necessary to do so.

British Columbia Rapid Transit Company Limited v Canadian Union of Public Employees, Local 7000 (R. Noonan, October 13, 2022)

The Union filed a grievance challenging the Employer’s decision to refuse to grant the grievor a religious-based accommodation in relation to its mandatory vaccination policy (the “Policy”). For the purposes of this grievance, it was assumed that the Employer’s Policy was legitimate (the Union filed a grievance challenging the Policy on broader grounds; however, that grievance will be heard at a later time).

a)    The Grievor was entitled to a religious-based accommodation

Arbitrator Randall Noonan found that the grievor’s refusal to become vaccinated was based on his sincerely held religious belief that it was wrong for him to be vaccinated.

b)    The Employer went too far in its line of inquiry

Arbitrator Noonan considered the question of how far an employer can go in questioning and analyzing an employee’s beliefs to satisfy itself that an accommodation is or is not required. He stated that the inquiry must be limited to determining the honesty of the belief. In other words, only to ensure that the “religious belief is in good faith, neither fictious or capricious, and that it is not an artifice.”

Here, the Employer should have focused on the sincerity of the Grievor’s beliefs. Instead, the Employer began “the very kind of religious inquisition that the Supreme Court of Canada has cautioned against” – an inquisition that went well beyond minimal. For example, the Employer asked if the Grievor objected to other medications and ultimately discovered that the Grievor had taken medications after a car accident. Upon this discovery, the Employer denied the accommodation to the Grievor, concluding that the Grievor’s objection to vaccination was not based on his religious belief but rather just based on personal preference. Arbitrator Noonan further wrote:

82.  By following the line of inquiry that it did, the Employer effectively asked what other religious beliefs the Grievor held and then sought extensive evidence to find that he had once breached another tenet of his belief. Counsel for the Union suggested an apt analogy. She said that the Employer’s line of inquiry was similar to asking a Catholic if they had ever sinned and then concluding that if they had, they must not be Catholic.

83.  The fact that the Grievor accepted medication while in severe pain and at a time when, in his words, he lost sense as to what was going on, cannot be used as a basis to conclude that he does not have a sincerely held religious belief that vaccinations offend his relationship with God.

84. …the Employer was obliged to take his request seriously and analyze his request through a human rights lens while exercising caution to keep its religious inquiry to the minimum required.

Reasonableness of Mandatory Vaccination Policies

Coast Mountain Bus Company v Unifor, Local 111 (J. de Aguayo, September 19, 2022)

On September 19, 2022, Arbitrator Jacquie de Aguayo found that the mandatory vaccination policy (the “Policy”) of the Employer, Coast Mountain Bus Company, was reasonable from April 2022 onwards.

a)    Facts

The Employer provides, among other things, the public bus service within the Lower Mainland. The Union, Unifor, Local 111, represents transit operators (“TOs”) employed by the Employer to operate the buses.

The Employer’s Policy came into effect on December 20, 2021. On April 12, 2022, after the Provincial Health Officer eased restrictions, the Employer maintained its Policy. The Union submitted that, from April 2022 and thereafter, the Employer’s decision to maintain the Policy is unreasonable.

b)    Decision

Arbitrator de Aguayo accepted and adopted the precautionary approach that other arbitrators have taken and noted that the Employer’s focus is on prevention and trying to mitigate the risk that a person could become seriously ill.  The Union relied on the evidence of Dr. Franco-Paredes to demonstrate that the Employer could rely on less intrusive measures, such as masking, anti-viral drugs (administered in hospital or in a clinic to adults with symptomatic COVID-19), or rapid antigen testing, to fulfil its duty under the Act.

Arbitrator de Aguayo disagreed. She preferred the evidence of the Employer, which included Orders, statements and guidance from public health authorities in British Columbia and Canada, to the evidence of Dr. Franco-Paredes regarding vaccine efficacy and Omicron. She concluded that vaccination is the most effective means available to the Employer to both reduce transmission and the risk of severe illness if an unvaccinated employee were to contract COVID-19. She noted that the alternative measures were insufficient because:

  • Masking does not address the risks of serious health outcomes once infected;
  • Anti-virals have limitations in that they need to be prescribed and are taken post-infection with the onset of symptoms; and
  • Rapid antigen testing is not preventative, nor is it a treatment.

British Columbia Rapid Transit Company Ltd. v Canadian Union of Public Employees, Local 7000 (R. Noonan, October 13, 2022)

On October 13, 2022, Arbitrator Randall Noonan found that the mandatory vaccination policy (the “Policy”) of the Employer, British Columbia Rapid Transit Company Ltd., has been reasonable since April 8, 2022.

There is another grievance being contemporaneously heard by another arbitrator regarding the reasonableness of the Policy prior to April 8, 2022. Thus, for the purposes of the grievance before Arbitrator Noonan, the parties agreed that he should assume that the Employer’s Policy was valid prior to April 8, 2022.

In arriving at his decision, Arbitrator Noonan relied on the findings in Coast Mountain, which was issued less than two (2) weeks before his decision. He found the following similarities between the Coast Mountain decision and the case before him:

  • Both employers are part of the same umbrella organization;
  • Both employers enacted similar policies at around the same time;
  • Both challenges to the policies were related to the validity of the Policy following the easing of health restrictions in April 2022; and
  • Arbitrator de Aguayo was presented with documents, public health orders and arguments similar to the ones before Arbitrator Noonan.

In the end, Arbitrator Noonan agreed with Arbitrator de Aguayo’s findings, which included a conclusion that public health officials continue to indicate that COVID-19 is a public health emergency and that vaccination remains the most important measure a person can take to reduce severe illness and death.

Cameco Corporation, Port Hope Facility v United Steelworkers, Locals 8562 and 13173 (Chauvin, November 14, 2022)

On November 14, 2022, Arbitrator Peter Chauvin found that the mandatory vaccination policy (the “Policy”) of the Employer, Cameco Corporation, was a reasonable measure to address the risks associated with COVID-19. With respect to the suspensions and discharges under the Policy, Arbitrator Chauvin stated that the Employer still has to prove, in separate arbitrations, that it had just cause for each individual suspension and discharge under the Policy.

The key takeaway from this decision is Arbitrator Chauvin’s comments on the reasonableness of the penalty of discharge for non-compliance with the Policy. The Policy stated that “employees who were not vaccinated after six weeks of leave would be subject to dismissal.” In finding that this was not an attempt by the employer to unilaterally impose a specific penalty, Arbitrator Chauvin wrote:

56    …I find that the discipline provisions serve as useful and appropriate warnings to the employees of what can occur if they choose to remain unvaccinated. However, any discipline pursuant to the [Policy] can be grieved, and is subject to the just cause standard. The Union is not restricted in any defence or argument it is entitled to raise in challenging that discipline.

Toronto (City) v Toronto Civic Employees’ Union, CUPE, Local 416 (R. Herman, November 11, 2022)

This decision of Arbitrator Robert Herman follows the decision of Arbitrator Derek Rogers, which we wrote about here. Arbitrator Rogers found that the mandatory vaccination policy (the “Policy”) of the Employer, the City of Toronto, was reasonable however, the enforcement mechanism under the Policy was not. Following this decision, the Employer stated that it was no longer maintaining that disciplinary suspensions or automatic terminations for cause were appropriate under the Policy. Instead, the Employer maintained that it was reasonable to place non-compliant employees on administrative unpaid leaves of absence. The Union took the position that since the Employer conceded that the enforcement mechanism of the Policy was not proper or appropriate, the entire Policy must be found to be unreasonable.

On November 21, 2022, Arbitrator Herman found that the Employer’s Policy was reasonable in requiring employees to be vaccinated to continue to work up to May 12, 2022. The Union suggested that it is only transmission risks that are relevant in considering whether the Policy is reasonable, and not the risks of an unvaccinated employee who contracts COVID-19 and suffers more serious consequences than someone who is vaccinated and gets COVID-19.

After reviewing section 25(2)(h) of the Occupational Health and Safety Act (OHSA), which sets out  the requirement that an employer must take all precaution reasonable in the circumstances to protect a worker, Arbitrator Herman concluded that under the OHSA, employers must take every reasonable precaution to protect employees both against the risks of transmission and against the  more serious consequences that the worker may face if they become infected with COVID-19. He wrote,

 99. …requiring employees to become vaccinated is by a considerable measure the most effective protection against transmission and/or the serious consequences of infection.  The requirement to be vaccinated attempts to protect both the unvaccinated employee and those vaccinated employees working with unvaccinated employees.

100.  Even if the Act itself did not require that the City take every reasonable precaution to protect employees from anything other than transmission, it was still reasonable for the City to attempt through the Policy to reduce the negative health ramifications for all workers should they become infected, and reasonable for it to take steps to minimize disruption to its ability to provide services to the public. At a minimum, the City has a valid interest in reducing the likelihood that its employees might die or be absent for lengthy periods while they are seriously ill and in the hospital.   As well, requiring employees to get vaccinated appears to have had the effect of incentivizing reluctant employees to become vaccinated, as reflected in the increased vaccination rate amongst City employees after the issuance of the Policy, which was also a reasonable purpose of the Policy.

On December 19, 2022, arbitrator Herman issued a supplementary award dismissing the union’s request to consider amendments to the Policy that occurred after May 12, 2022. On November 8, 2022, the City issued an email communication to all staff advising employees that it was updating its Policy, effective as of December 1, 2022, to no longer require that an employee must be vaccinated, and that employees who had not disclosed their vaccine status or were unvaccinated would be offered reinstatement to unpaid leaves, and would be eligible to return to work as of December 1, 2022.

Arbitrator Herman found that he did not have jurisdiction to consider the amendments to the policy.  However, he did find that he had jurisdiction to consider the reasonableness of keeping employees who had been discharged off work on unpaid leaves after May 12, 2022.  A similar conclusion was reached by arbitrator Rogers in his supplementary award related to the Toronto firefighter case referred to above.  We can anticipate further awards regarding the issue of remedy in 2023.

UNIFOR, Local 882 v Maritime Paper Products Limited Partnership (G. Fillitier K.C., November 22, 2022)

On November 22, 2022, Arbitrator George Filliter found the mandatory vaccination policy (the “Policy”) of the Employer, Maritime Paper Products Limited Partnership, to be reasonable.

The Employer’s Policy initially required unvaccinated employees to be tested three (3) times in a seven (7) day period, however, on February 15, 2022, the Policy was changed to require all employees to become vaccinated against COVID-19. As a result, two grievors were placed on a leave of absence without pay that lasted approximately one (1) month. The Union alleged that the Policy was unreasonable.

Arbitrator Filliter stated that in order to consider whether the Policy was reasonable, he needed to consider what was happening in the province of New Brunswick at the time (February 2022). At the time, New Brunswick was in “Level 2”, which was a relatively restrictive phase of socialization designed to limit the spread of the Omicron variant. The Policy was sent to employees two (2) days before New Brunswick announced that there was a confirmed case of a new subvariant of Omicron called BA.2. Arbitrator Filliter confirmed that the test here is not whether the measures adopted by the Employer were the best, but rather whether the measures introduced were reasonable. He found that the Policy was a reasonable response to the evolving situation respecting COVID-19 and the recognition that the virus was mutating. More specifically, cases of the highly contagious Omicron variant and subvariants were confirmed in New Brunswick.

Notably, Arbitrator Filliter expressed his view that the Employer should have met with the Union and enter into meaningful discussions with the Union about the Policy. A failure to do so is not fatal, but it should have been done.

Court Proceedings

National Organized Workers Union v. Sinai Health System (ONCA)

On November 22, 2022, the Ontario Court of Appeal (ONCA) upheld the decision of the Ontario Superior Court of Justice (ONSC) in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, which we wrote about in our prior publication. The ONSC decision was released shortly after the Blake v. University Health Network decision in which the Honourable Justice Dunphy declined to extend an interim injunction that was initially issued to prevent the University of Health Network from terminating union employees who refused to comply with its mandatory vaccination policy. We wrote about the initial interim injunction and the subsequent hearing here.

a)    Ontario Superior Court of Justice

In the ONSC case, the Union sought an interim injunction to stop the Employer, Sinai Health System, from enforcing its mandatory vaccination policy (the “Policy”) until the completion of the arbitration of its Policy grievance. The Honourable Justice Akbarali found that it was in the interests of justice to dismiss the request for interim injunctive relief, which meant that the Employer could proceed with enforcing its Policy and unvaccinated members faced discipline while the Policy grievance was in process.

b)    Ontario Court of Appeal

The Union appealed the order of Justice Akbarali and the central issue was whether the ONCA should intervene in the application of Justice Akbarali’s discretionary decision to decline to exercise the ONSC’s residual jurisdiction in labour relations matters to grant an interlocutory injunction pending the arbitration of grievances.

The key takeaway from the ONCA appeal’s reasons for declining to intervene is that Justice Akbarali did not make an error of law in finding that the loss of employment and related loss of income, which was the harm at issue in the ONSC decision, could be remedied by an arbitrator in the event the union prevailed in its grievances. Justice Akbarali had concluded that since the labour relations process could remedy the harm of loss of employment and loss of wages, there was no remedial gap warranting the discretionary exercise of the ONSC’s residual jurisdiction.

The ONCA concluded that because Justice Akbarali did not err in law (or make any palpable and overriding error of fact), there was no basis for the ONCA to intervene in her discretionary decision to decline to exercise the ONSC’s residual jurisdiction in labour relations matters and to decline to grant an interlocutory injunction pending the arbitration of grievances.

Refusal to Comply with a Mandatory Vaccination Policy is Wilful, Conscious and Deliberate Misconduct Disqualifying Employees from Employment Insurance

In several recent decisions, the Appeal Division of the Social Security Tribunal of Canada (the “Tribunal”) found that an employee’s refusal to comply with their employer’s mandatory vaccination policy constitutes wilful, conscious, and deliberate misconduct.  The cases are detailed below.  It remains to be seen whether the courts or arbitrators will reach a similar conclusion and deny compensation or reinstatement for non-compliant employees.

GD v Canada Employment Insurance Commission

The Claimant worked as an accountant and began working remotely when the COVID-19 pandemic started. Prior to her termination, the Claimant was reminded at least three (3) times that she was required to comply with the Policy and failure to do so would result in a review of her employment status and, eventually, termination of her employment. The General Division concluded that the Claimant made a personal and deliberate choice not to follow her Employer’s Policy, which is considered to be misconduct within the meaning of the Employment Insurance Act (EI Act). The Complainant’s appeal was dismissed.  

RG v. Canada Employment Insurance Commission

The Employer’s mandatory vaccination policy (the “Policy”) required all employees, including those working remotely, to become fully vaccinated. The Claimant was working from home for a number of years and signed a contract to continue working from home until December 30, 2022.

The appeal was dismissed, confirming the General Division’s findings that:

  • The Policy applied to the Claimant even if he worked from home;
  • The Claimant knew that the employer was likely to suspend him for non-compliance; and
  • The Claimant’s refusal to comply was wilful, conscious and deliberate.

CM v Canada Employment Insurance Commission

The Claimant in this case was on a leave without pay (suspension) when she applied for EI benefits. She worked in her Employer’s administrative services department.

The appeal was dismissed, confirming the General Division’s findings that:

  • She was told about the Employer’s Policy, and she had time to comply with it;
  • She deliberately refused to follow the Employer’s Policy, even though the relevant authorities supported it; and
  • She knew that refusing to follow the Policy could lead to her suspension as she was told more than once about the consequences of going against the Policy.