Ontario Court issues interim injunction against the termination of unvaccinated UHN employees*
October 29, 2021
*The injunction described below was lifted on Oct. 29, 2021. We will provide an update shortly.
On October 22, 2021, the Ontario Superior Court issued an interim injunction, temporarily halting an attempt by the University of Health Network (“UHN”) to terminate its unvaccinated employees. The injunction was granted in response to an urgent motion brought by six UHN employees asking the court to enjoin their termination on the basis of the UHN COVID-19 mandatory vaccination program deadline.
At the outset of the decision, Justice Sean Dunphy emphasized that the issuing of the interim injunction was not a determination of the merits of any claim advanced with respect to the mandatory vaccination policy. The application, Justice Dunphy noted, is expected to be “hotly contested” as the issues are “strongly debated in the public sphere.”
The UHN encompasses the Toronto General and Toronto Western hospitals, the Princess Margaret Cancer Centre, Toronto Rehabilitation Institute, and the Michener Institute of Education at UHN. While the injunctive relief was sought on behalf of all similarly situated employees of UHN (those at risk of termination for their refusal to fully vaccinate), Justice Dunphy held that the interim injunction applies only to the six named plaintiffs and 19 others who were in the process of retaining counsel when the application was filed. While approximately 180 UHN employees have refused the vaccine, Justice Dunphy reasoned that this the case at bar was not a class action proceeding and that there was no basis to extend the interim order to non-parties.
In his interim decision, Justice Dunphy held that termination could cause irreparable harm to the employees, writing, “[t]he harm raised by the applicants is potentially serious and cannot be undone. It is alleged that some or all of them may be compelled to take the vaccine against their will because they cannot in their personal and family circumstances take the risk of being left destitute by the policy they are seeking to challenge.”
The court recently reconvened to hold a hearing as to whether the Superior Court has jurisdiction over the matter. With respect to disputes in a unionized workplace, the Supreme Court of Canada (“SCC”) in Weber v Ontario Hydro held that labour arbitrators hold exclusive jurisdiction to hear disputes on collective agreement matters. However, the SCC recently clarified in Northern Regional Health Authority v. Horrocks that arbitrators do not have exclusive jurisdiction over matters outside of their remedial authority, including interlocutory injunctions.
As this is believed to be the first time a COVID-19 vaccine mandate in Ontario has faced a successful legal challenge, it may give pause to employers who are considering terminating employees that refuse to vaccinate and may encourage them to carefully consider requests for accommodations or exemptions under the workplace vaccination policies.
This blog post will be updated as the situation develops.
Authored by Harminder (Harry) Mundi and Paniz Khosroshahy, Articling Students