Ontario Court lifts interim injunction against the termination of unvaccinated UHN employees

November 4, 2021

The University of Health Network’s (“UHN”) mandatory vaccination policy required all of its more than 17,000 employees to be fully vaccinated or face termination of their employment, commencing October 22, 2021. Justice Sean Dunphy of the Ontario Superior Court issued an interim injunction on October 22, 2021, in response to a motion brought by several UHN employees who asked the court to enjoin their termination pursuant to this deadline. The interim injunction did not determine whether an injunction should be issued; rather it was simply to preserve the status quo while a preliminary jurisdictional issue was determined and to give affected trade unions the opportunity to intervene. The jurisdictional issue pertained to whether the court could grant the relief sought in relation to unionized employees.  After hearing submissions about the jurisdictional issue, on October 29, 2021, Justice Dunphy lifted the interim injunction. As outlined at paragraph 3 of the decision, the October 29, 2021 decision does not address the merits or legality of UHN’s vaccination policy.

The plaintiffs included both unionized and non-unionized employees. The court applied the three-part test from RJR-MacDonald to the request for an injunction. In particular the court noted that the question of whether it has jurisdiction to examine the issue of UHN’s mandatory vaccination policy goes to the heart of the first criterion from RJR-MacDonald, namely whether there is a serious issue to be tried on the question of liability. At paragraph 4 the court stated: “There is no serious issue being taken today with whether there is at least the potential for the vaccination policy to be found to be unreasonable, unlawful or a breach of the contractual rights of some or all of the plaintiffs after a thorough review process. If, as claimed, there is no jurisdiction to examine the issue at all however, there can be no serious issue to be tried on the question of liability in this forum.”

The Unionized Plaintiffs

In considering the first part of the RJR-MacDonald test with respect to the unionized employees, the court identified two issues to be determined: 1) whether the unionized employees had standing to seek the relief sought and 2) whether the court had the jurisdiction to grant the interim or permanent relief sought in relation to the claims made by the unionized plaintiffs. The court found that there was not a serious issue to be tried as to the unionized employees’ standing to prove liability.  In reaching this conclusion, Justice Dunphy cited Weber v. Ontario Hydro, in which the Supreme Court of Canada (“SCC”) held that disputes whose “essential character” arises from a collective agreement are under the exclusive jurisdiction of labour arbitrators.[1] Justice Dunphy found that the essential character of the dispute before the court went to the core of the collective agreement. He found that the claim called into question the employer’s right to enact and enforce its vaccine policy and that that clearly involved a consideration of the management rights clause under the collective agreement as well as the intersection between the management rights clause and bargained-for health and safety policies. In addition, Justice Dunphy noted that the claim disputed the employer’s right to terminate the affected employees and that:[2]

There are few aspects of a collective agreement more fundamental than establishing what does and does not constitute just cause for the discipline or termination of employment of an employee subject to it. The very foundation of the dispute depends on the existence of the collective agreements since … there is simply no general right to interfere with the decision of an employer to terminate the employment of an employee with or without cause.

Justice Dunphy also noted that the unions had filed a variety of individual and policy grievances with respect to the vaccination policy but had not pursued all remedies—such as interim relief—within the timeline desired by the plaintiffs. He found that the essential character of the dispute was not altered by the unions’ strategic choices with respect to remedy.

With regard to the second issue, Justice Dunphy declined to continue the interim injunction and stayed the civil claim in favour of the arbitration process. In doing so, he cited the recently released SCC decision Northern Regional Health Authority v. Horrocks, which reaffirmed labour arbitrators’ exclusive jurisdiction but held that there exists “residual jurisdiction of the superior court to grant remedies that lie outside the remedial authority of a labour arbitrator, including interlocutory injunctions to ensure that there is no ‘deprivation of ultimate remedy.’”[3]

Justice Dunphy emphasized that judicial discretion must be exercised judicially and held that even though it was not possible to “undo a vaccine once administered” and vaccination against COVID-19 was novel, these matters would be better dealt with at arbitration. He wrote:[4]

The residual authority in question is not a sort of Trojan Horse that can be applied to undermine the exclusive jurisdiction of the arbitration process or the exclusive agency of the union in representing its members through that process. Properly understood, the residual discretion must be seen as complementary to and not destructive of those fundamental labour relations principles.

In addition, Justice Dunphy noted that none of the unions had asked him to maintain the interim injunction   for a period of time that would permit them to bring their own applications, despite the fact that they had standing to do so. Significantly, he stated that the unions’ decision as to whether or not to pursue a particular remedy “is entitled considerable deference in our civil court”[5] and that he would not substitute his own judgment for that of the unions by imposing a remedy that they had not requested (i.e. by continuing the interim injunction).

The Non-Unionized Plaintiffs

Justice Dunphy also found that the interim injunction could not be maintained for the non-unionized UHN employees.  He explained that employers are entitled to terminate non-unionized employees at will, and if that termination lacks justification, employees are entitled to compensation although not reinstatement. As such, he found that non-unionized employees are not at risk of irreparable harm justifying an injunction. Justice Dunphy also dismissed the suggestion that some plaintiffs may have additional rights under the Human Rights Code on the basis that there was no evidence on the record before him to establish a serious issue to be tried that the vaccination policy at issue contravened the anti-discrimination provisions of the Human Rights Code.

For these reasons, the interim injunction granted on October 22, 2021, was dissolved for both unionized and non-unionized employees as of October 29, 2021.

[1] Weber v. Ontario Hydro, [1995] 2 SCR 929.

[2] Blake v. University Health Network, 2021 ONSC 7139 at para 12, citing Northern Regional Health Authority v Horrocks, 2021 SCC 42

[3] Blake v. University Health Network, 2021 ONSC 7139 at para 8.

[4] At para 17.

[5] At para 20.

Authored by Katherine Ferreira, Harminder Mundi, and Paniz Khosroshahy

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