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Ontario Superior Court Issues First Interim Injunction of its Kind Against UHN Vaccine Mandate

Update: On the afternoon of Friday, October 29, Justice Dunphy of the Ontario Superior Court of Justice lifted the temporary injunction that had paused the termination of a group of unvaccinated employees at UHN. Justice Dunphy held that the Court did not have the jurisdiction to grant the relief sought by the claimants. In his decision, he held that the unions alone had the authority to bring a claim of this nature and that the dispute should be heard through the labour relations system. Though this update answers some questions about the jurisdiction of the Court where unions are involved, there are many outstanding issues. As more cases of this nature wind their way through the justice system, we will surely be hearing more about mandatory workplace vaccination policies.

Last Friday, Justice Sean Dunphy of the Ontario Superior Court of Justice issued what is likely the first interim injunction against a vaccine mandate in Ontario. The injunction was issued after the University Health Network (UHN) of Toronto instituted a policy to terminate any employee who is not double vaccinated by October 22. The injunction pauses the termination of these employees until the Court can make a more comprehensive determination.

Unvaccinated employees had filed the lawsuit against the hospital network hoping the court would make a determination that the vaccine mandate is illegal and discriminatory. The current injunction applies only to the employees involved in the case. It also does not reinstate employees who have already been terminated.

At issue in the case is the question of jurisdiction. UHN and the unions argue that the union alone can bring cases against the employer (UHN in this case) and that the unionized employees involved in this case do not have the authority to bring such a claim. Justice Dunphy issued the interim injunction stating that it was possible that both sides had merit and that the Court would need more time to consider the arguments.

Employees typically are not able to bring cases directly against their employers if they are unionized. However, the plaintiff employees and their lawyers argue that the unions do not have the exclusive right to bring cases forward in these circumstances on the grounds that this mandate is a novel situation, and therefore requires adjudication by the courts. Most of UHN’s employees are not unionized (57.5% unionized). If the court finds that the employees are not able to bring the claim, then the Court would lack the jurisdiction to hear the case at all.

Justice Dunphy’s final determination is expected on Friday, October 29th. The employees are hoping for an extension of the injunction while the UHN hopes to have the case dismissed. The Nurses Association is the only union to be neutral on the question of whether the Court can hear the case brought directly by the employees.

While hospitals are currently under a provincial government vaccination policy, that policy only requires that health and education workers be vaccinated or tested regularly. The UHN’s policy goes beyond that in mandating that all employees be fully vaccinated or be terminated. This discrepancy between the mandatory policy and the UHN’s vaccine mandate may be an issue that the Court will consider.

Of particular interest is the fact that the injunction puts a pause on the termination of the private sector employees. At law, employers are typically able to terminate a non-unionized employee for any reason at any time, except if the termination is discriminatory and on protected grounds (for example if an employer terminates their employee because of their religious beliefs). Lawyers for the employees argue that medical status, including vaccination status, is a protected ground for discrimination. Further, they argue that the employees are not seeking to stop their terminations, but rather to halt the implementation of a policy that they argue is unlawful. Ultimately, it will be up to the Court to decide the merits of that argument.

In this case, Justice Dunphy pointed out that none of the employees were scheduled to work during the injunction period anyway, and there was, therefore, no risk to the public.

This case demonstrates that, though many employers are forging ahead with vaccine mandates for their employers, either as a result of a government policy or on their own initiative, there are still many unanswered legal questions that they need to be aware of. The Courts will exercise their discretion in hearing challenges to vaccine mandates whether from unionized, government-mandated workplaces or not.

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