Court lifts temporary injunction on Toronto hospital network vaccine mandate

TORONTO — An Ontario judge has lifted a temporary injunction that paused enforcement of a Toronto hospital network’s COVID-19 vaccination policy, saying he does not have the jurisdiction to grant the relief sought by a group of unvaccinated workers.

Ontario Superior Court Justice Sean Dunphy issued the interim injunction last week after several unvaccinated employees filed an emergency application as part of a legal challenge against the University Health Network’s immunization mandate.

The hospital network had said staff who didn’t receive both COVID-19 shots by Oct. 22 would lose their jobs. The workers allege the policy is illegal and discriminatory.

In a written decision released Friday, Dunphy said that when it comes to unionized UHN staff, the “essential character” of the dispute lies squarely within the realm of the labour relations system.

As a result, it should be resolved through arbitration, grievances and other labour relations processes, he says, noting that all unions whose members are affected have taken such steps to challenge the vaccine policy.

“The claim disputes the right of the employer to terminate the employment of the affected employees,” Dunphy wrote.

“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 court does have the authority to intervene in some cases when an arbitration board lacks “the necessary remedial tools… to preserve the status quo pending the determination of the dispute,” Dunphy said. However, the judge said he is not satisfied it would be appropriate in this case.

“None of the unions who have intervened on this hearing asked me to maintain the interim injunction in place for a period of time to permit them to bring their own applications,” he wrote.

“All of them have the undoubted standing to do so. The decision of the collective bargaining agents to pursue or not pursue a particular remedy is one that is entitled considerable deference in our civil court given the fundamental nature of the labour relations principles involved.”

As for non-union UHN staff, Dunphy said private-sector employers in Ontario are allowed to fire employees at will outside of a collective bargaining setting.

“Given that fundamental principle, it is hard to see how any plaintiff who is not in a union can allege irreparable harm arising from threatened termination of employment,” the judge wrote.

“If the termination of their employment is not justified, they are not entitled to their job back – they are entitled to money. Money, by definition, is not only an adequate remedy, it is the only remedy.”

Lawyers for the plaintiffs argued Thursday that while employers can terminate the employment of non-union staff at their discretion, they cannot do so for discriminatory purposes, such as medical status.

While it may be that some of the plaintiffs have additional rights under the Ontario Human Rights Code, there is no evidence before the court at this time that “comes close to establishing even a serious issue to be tried that the impugned vaccine policy contravenes the anti-discrimination provisions of the code as regards any of them,” the judge said in his ruling.

Such evidence may be presented at a later date, but it is not currently part of the record, he said.

Dunphy stressed, however, that his decision regarding the temporary injunction “does not address the question of the merits or legality of the vaccine policy adopted by UHN.”

Lawyers representing the plaintiffs said their clients were disappointed with the ruling but planned to proceed with the lawsuit.

“These health-care heroes may now be left without temporary job protection while they challenge UHN’s mandate, which they argue is illegal and discriminatory,” Ryan O’Connor, who represents some of the workers, said in an email.

“That said, they will proceed with a full hearing seeking a further injunction against this mandate as soon as possible.”

Ian Perry, who also represents some of the plaintiffs, said the legal challenge has “only just begun.”

UHN’s president and CEO, Kevin Smith, said in a statement distributed to staff following the ruling that the network’s arguments in court were supported by the unions and the Ontario Hospital Association.

“Our teams… have done a lot of work to ensure that this process was as respectful as possible for the people leaving the organization who could not comply with our policy. I respect their choice and thank them for their work at UHN,” he said.

“I am sorry to see anyone leave but given that over 99 per cent of Team UHN are now doubly vaccinated, I also have respect for those who chose the health and safety of the patients who come to us for care and colleagues who have done what is possible to protect each other.”

A spokesperson noted that the percentage of fully vaccinated staff has not yet reached 100 per cent because some who received their first shot in early October have to wait before getting their second dose.

The hospital network’s COVID-19 vaccine mandate goes beyond the province’s policy, which requires health and education workers to be vaccinated or tested regularly.

The lawsuit began with six plaintiffs but has since added at least two dozens more.

This report by The Canadian Press was first published Oct. 29. 2021.

Paola Loriggio, The Canadian Press