British Columbia Arbitrator denies application for a temporary stay of the City of Richmond mandatory vaccination policy
January 21, 2022
On January 12, 2022, Arbitrator Randall J. Noonan released a decision in which he denied an application by the International Association of Professional Firefighters, Local 1286 (“IAFF”) and the Canadian Union of Public Employees, Locals 718 and 394 (“CUPE”) (together, the “Unions”) to stay the application of a mandatory vaccination policy (the “Policy”) by the City of Richmond (the “City” or the “Employer”) in British Columbia. The Unions argued that the application of the Policy should be temporarily paused by way of an interim order for a stay or an exemption for certain employees until the release of a decision on the reasonableness of the policy. Arbitrator Noonan denied the application, finding that the harm to the Union’s members was outweighed by the risk of significant harm or death that may result from Covid-19 infection if the Policy was not implemented.
The Policy was announced by the City of Richmond on October 25, 2021, and required that all City employees be vaccinated and provide proof of such by December 20, 2021. Employees who did not comply with the Policy or have a bona fide exemption would be placed on an indefinite leave of absence as of December 21, 2021. IAFF and the two CUPE locals filed grievances regarding the Policy and the parties agreed to combine the proceedings.
IAFF represents firefighters employed by the City of Richmond. The two CUPE locals respectively represent employees at indoor and outdoor City of Richmond facilities, such as City Hall or city parks, among others. Many of the Unions employees interact regularly with members of the public, though some do not and only interact with a limited number of other employees and are capable of wearing protective masks and practicing social distancing while doing so. 39 of the Unions roughly 2000 employees did not comply with the Policy and were placed on unpaid leave, leading to the Unions submitting a grievance to be heard in March and this application for interim relief.
Arbitrator Noonan applied the test for injunctive relief from the leading Supreme Court of Canada case RJR MacDonald. The test requires the adjudicator to determine: i) whether there is a serious question to be tried; ii) whether the applicant would suffer irreparable harm if the application were refused; and iii) which party would suffer greater harm from the granting or refusal to grant the interim remedy, which is referred to as the balance of convenience.
The Unions argued that the application of the policy to the 39 employees would cause irreparable harm that could not rectified by an award of damages at a later date. Some of the members’ concerns flowed from the loss of income. Some of the members reported that they would not be able to pay their mortgage, keep their children in expensive treatment programs, or would face other difficulties in providing the necessities of life for themselves and their families. Other concerns were medical, such as one member who was experiencing stress about the possible impact of the vaccine on their pre-existing medical condition, while other concerns were interpersonal such as suffering marital harm. They also argued that the Policy would require the disclosure of private medical information indirectly through the implication of their absence while on leave. The Unions noted they would also accept a rapid testing system with the unvaccinated employees incurring the costs of testing in lieu of the mandatory vaccination policy.
Further, the Unions argued that other policies in place in the workplace, such as mandatory masking and ventilation measures, adequately protected employees and that the low amount of transmission at the workplace thus far was evidence that the Policy was addressing an issue that did not exist for employees.
The City argued that the form of harm asserted by the Unions was not “irreparable” as contemplated by the RJR MacDonald test and that whatever harm may occur was outweighed by the risk of serious illness or death that would be heightened for employees and members of the public if the Policy was stayed, which weighs in favour of the employer on the balance of convenience. The Employer further argued that no private information would be disclosed and that, at most, the Policy only demonstrates the fact that the employee refused to disclose their vaccination status.
It was not disputed that the eventual grievance of the policy presented an arguable case on the merits.
The Arbitrator agreed with the Unions that the Policy would result in the disclosure of private medical information or to become vaccinated against their wishes, which would represent losses that could not be compensated by a later monetary award. However, the Arbitrator declined to determine whether some of the other forms of harm asserted by the Unions qualified as “irreparable” under the RJR MacDonald test, for example members becoming unable to pay their mortgages, experiencing marital harm, or having to take their children out of therapeutic programs. Instead, Arbitrator Noonan disposed of the application on the basis of the balance of convenience test.
Arbitrator Noonan noted that there was evidence before him that vaccination was an effective method of preventing contracting Covid-19 and experiencing significant symptoms or death. He rejected the Unions argument that low workplace transmission rates to date suggested that further measures were improper and found that a proactive policy is not invalidated by the fact that the event it protects against has yet to occur.
Arbitrator Noonan concluded that no amount of monetary award could rectify serious illness or death which the Policy protects against and that “…the health and safety risks to employees and to members of the public with whom they interact outweigh the intrusion into privacy and bodily integrity rights of those members of the Unions who choose not to comply with the Policy” (para 101). In addition, he found that an exemption to the policy for the 39 employees in question was also not an appropriate interim order as the harm suffered by the employees was outweighed by the harm flowing from staying the Policy. Accordingly, he denied the applications by the Unions.
Authored by Luka Ryder-Bunting