The Ontario Superior Court of Justice (“ONSC”) in Blake v University Health Network [Blake] confirmed that disputes arising from collective agreements are properly under the exclusive jurisdiction of labour tribunals, and that dismissals of private-sector employees are properly under the exclusive authority of employers.
As such, the ONSC dissolved an injunction to stay (or pause) the dismissal of University Health Network (UHN) employees who had not complied with UHN’s mandatory vaccination policy.
The ONSC emphasized that its decision did not address the merits or legality of UHN’s vaccination policy.
Following the Chief Medical Officer of Health’s publication of Directive 6, which required Ontario hospitals and healthcare establishments to implement COVID-19 vaccination policies, UHN adopted a mandatory vaccination policy requiring its employees to be fully vaccinated by October 22, 2021. Employees who failed to comply with the policy faced dismissal.
Before they could be dismissed, a group of unionized and non-unionized UHN employees (the “affected employees”) brought an urgent motion for an injunction on October 22, 2021, to stop the imminent dismissals due to their refusal to take the COVID-19 vaccines. Given the preliminary issue of whether the ONSC had jurisdiction to grant labour-related remedies, the ONSC granted an interim injunction to stay the dismissals of the affected employees and maintain the status quo until October 28, 2021, when the matter would be heard. Importantly, the affected employees were not scheduled to work earlier that week, and a later dismissal would not have affected either side.
ONSC Decision on Injunction
Upon hearing the matter, the ONSC dissolved the interim injunction, as the affected employees failed to meet the stringent test for an injunction.
For the ONSC to grant the extraordinary remedy of an injunction—which would force a party to stop performing a specific act—the ONSC would need to be satisfied that:
- there is a serious issue to be tried on the question of liability;
- there is a real potential for irreparable harm to ensue if relief is not granted; and
- the balance of convenience favours the granting of relief at this early stage.
No Standing for Unionized Employees
To determine whether there was a serious issue to be tried, the ONSC first assessed the unionized employees’ standing to prove liability, and found they had no standing. Following the Supreme Court of Canada’s decisions in Weber v Ontario Hydro and more recently, in Northern Regional Health Authority v Horrocks [Horrocks], the ONSC confirmed that labour arbitrators have exclusive jurisdiction over disputes whose “essential character” arises from a collective agreement, unless there is a clearly expressed legislative intent to displace that exclusive jurisdiction.
As the main claim consisted of facts surrounding UHN’s mandatory vaccine policy, the dispute involved consideration of the management rights clause and bargained-for health and safety policies under the collective agreement. Moreover, the issue of cause for discipline or dismissal is a fundamental aspect of a collective agreement. This made the dispute properly under a labour arbitrator’s jurisdiction.
Thus, there was no serious issue to be tried, and subject to any residual jurisdiction, there could be no injunction issued.
No Residual Jurisdiction Regarding Manner By Which Disputes are Resolved By Unions
In determining whether it had any residual jurisdiction, the ONSC relied on Horrocks, which held that the courts’ residual jurisdiction to grant remedies lies outside of the remedial authority of labour arbitrators, so that no “deprivation of authority” occurs. Such residual authority should not destroy fundamental labour relations principles, but complement them.
Importantly in Blake, none of the unions had asked the ONSC to maintain the interim injunction to permit them to bring their own labour applications seeking the requested interim and permanent relief, despite the unions having standing to do so. The ONSC held that the unions’ decision as to whether to pursue a particular remedy should not be substituted by a court’s judgement, which would effectively impose a remedy that the unions had not requested.
With no residual jurisdiction, the injunction test failed at the first branch.
No Irreparable Harm to Non-Unionized Employees
The ONSC then addressed whether the interim injunction should be continued for the non-unionized employees, and held it should not.
Generally, private-sector employers may dismiss their employees at any time and for any reason, as long as the employee receives their proper termination entitlements. In these cases, because employees are not entitled to be reinstated, money is the only remedy for the dismissed employee’s damages. Therefore, there can be no “irreparable harm”.
The ONSC also found there was simply no evidence before it to demonstrate UHN’s mandatory vaccine policy contravened the anti-discrimination provisions of the Ontario Human Rights Code with respect to the non-unionized employees.
Given the above, the interim injunction was dissolved for all affected employees.
The Blake decision confirms the importance of bringing a dispute to the proper forum, otherwise, a decision-maker may not have jurisdiction to hear the matter, regardless of how important the dispute is for the parties involved.
If the essential character of a dispute is found to arise from the interpretation, application, administration, or violation of a collective agreement, then the dispute should fall under the jurisdiction of labour tribunals, subject to any residual jurisdiction. The ONSC left the door open for courts to use residual discretion where unions have supported a labour application.
Not only will courts give deference to labour arbitrators where the latter have remedial authority, courts also recognize an employer’s exclusive authority to dismiss their employees at any time, for any reason, subject to the employee being provided with their proper termination entitlements. Private-sector employees cannot rely on the courts to step in to stop an imminent dismissal.
Importantly, in the case of Blake, the court awarded no costs as neither party made any specific requests regarding costs. Motions—and any litigation step for that matter—can be costly, and you cannot get what you do not ask for. Employers should be mindful even as the responding party to ask for remedies where they can.
Blake is one of many important decisions regarding workplace COVID-19 vaccination policies, and we will inevitably see a wave of cases regarding these policies. We will continue to monitor these cases to update employers on the current state of the law with respect to COVID-19 vaccination policies.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.