By Ron Minken, Tanya (Tejpreet) Sambi and James Moon
Proponents of mandatory vaccination in the workplace have yet to obtain a Court or Tribunal decision in support of the legality of an unpaid leave of absence or a termination of employment due to a refusal to comply with a vaccination policy. The Union for the Toronto Transit Commission workers was unsuccessful in obtaining a court injunction to block the TTC from enforcing its’ mandate to put workers, who have refused to be vaccinated, on an unpaid leave of absence or be terminated.
Justice Akbarali, did not rule on the legality of unpaid leaves and terminations, but did rule that TTC workers still have the right to seek damages for loss of employment and to seek redress through the labour arbitration process for mental distress and human rights issues.
On September 7, 2021, the TTC introduced a COVID-19 Mandatory Vaccination Policy. The TTC Policy provides that employees who have not received their second dose (or one dose of a single dose series) by November 21, 2021, will be immediately placed on an unpaid leave of absence. Employees who remain unvaccinated until December 30, 2021, will be terminated on December 31, 2021. While the TTC Policy provides for exemptions for accommodation under the Human Rights Code, the College of Physicians and Surgeons of Ontario have limited medical exemptions to “severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine” or a “diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine”.
Amalgamated Transition, Union 113 and Carlos Santos sought an injunction from the Court to restrain the TTC from placing their employees on an unpaid leave of absence or terminating employees before the outcome of the arbitration grievance, filed by the Union to challenge the TTC Policy, is finalized.
The TTC Court Decision
Applying the Supreme Court of Canada test in RJR-MacDonald Inc. v. Canada (Attorney General), the Court agreed with the TTC workers that there was a serious issue to be tried. However, the injunction was denied on the basis that the harm for pay or job loss is reparable because the workers still had the right to seek re-instatement of their employment. Labour arbitrators had the right to grant re-instatement or damages if TTC’s termination was unjust.
The Court confirmed that irreparable harm is harm that “cannot adequately be compensated by damages”, which is not the case here. Further, the balance of convenience favoured the TTC. The Court said that “the harm at issue is the loss of employment or income that the unvaccinated will suffer. Choosing vaccination as a less undesirable alternative than the loss of one’s income (which may be restored if the challenge to the TTC Policy in the labour arbitration is successful) is not properly characterized as the harm.” The Court continued:
Fundamentally, I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated. It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual’s to make. Of course, each choice comes with its own consequences; that is the nature of choices.
While the Court did not address the legality of being placed on an unpaid leave of absence or being terminated, due to refusal to comply with a vaccine mandate policy, this decision will make it more difficult for employees to seek an injunction against a mandatory vaccination policy. If, however, the mandatory vaccination policy is later found to be unreasonable by an arbitrator, employees will likely be entitled to compensation for being placed on unpaid leaves of absence and any potential human rights issues that may arise. We look forward to Court decisions with respect to whether, and if so how, the Canadian Charter of Rights and Freedoms will apply, what will constitute grounds for accommodation due to disability, creed (religion), sex (pregnancy) and age under Human Rights legislation and the application of Privacy legislation.
How Minken Employment Lawyers Can Help
If you require legal advice on how this decision may potentially impact your workplace or whether a vaccination policy is exceeding your requirements under the Ontario Occupational Health & Safety Act and how to avoid liability, contact us today to speak with one of our experienced lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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