Their primary complaint is that they are being “forced” or “coerced” to be vaccinated, alleging that this breaches, among other things, the Canadian Charter of Rights and Freedoms, human rights legislation, the criminal code and, most ludicrously, the Nuremberg Convention. We have said throughout that such arguments are mere piffle.
The Ontario Superior Court of Justice has now agreed.
On November 20, Justice Jasmine Akbarali rendered a joint decision involving both Toronto Transit Commission and Sinai Health System, denying an injunction by their unions to block the companies from enforcing its COVID-19 vaccine mandate on their workforces and their right to dismiss unvaccinated workers.
The Superior Court’s decision is a clear indication of how the courts will likely rule going forward. It follows a series of other cases during the pandemic in which the courts have consistently ruled in favour of employers’ safety measures.
The Mount Sinai Hospital’s union argued that Sinai Hospital’s vaccine mandate would cause unvaccinated workers to suffer “irreparable harm” as they were being forced to choose between vaccination and losing their job, and as a result, would suffer financial harm of such magnitude that they were effectively coerced into being vaccinated against their wishes.
Justice Akbarali disagreed, ruling that employees were not forced to be vaccinated, but choosing between vaccination and keeping their job or remaining unvaccinated and losing it. The judge came to a similar conclusion as she considered the TTC union’s injunction.
As Justice Akarbali put it: “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.”
She further found that loss of employment can be compensated by damages so no fundamental rights were at risk and that arbitrators have authority to reinstate any employees if a termination was ruled unjust. The court added that the argument that the stigma associated with being unvaccinated would cause harm to those terminated is speculative, so had no legal weight.
This is the second case where unions have gone to the court for injunctions to restrain employers from issuing policies requiring employees to be vaccinated or lose their jobs. Justice Akbarali had little patience for that: “Were the court to intervene to grant injunctive relief whenever a member of a bargaining unit was facing the loss of employment, the courts would be full of applications for injunctions, and the labour relations scheme designed by Parliament would become impoverished.”
The union argued that it made little sense for the TTC to require mandatory vaccination of its employees when its riders did not have to be vaccinated. The court disposed of that argument as follows:
“The fact that the TTC would be safer if every rider were vaccinated does not logically support a conclusion that there is no or little inconvenience to the TTC if it were enjoined from improving the safety on the TTC by making sure TTC employees are vaccinated.”
Although this decision relates, as all have so far, to unionized employees, it provides guidance to those non-union employees who risk being fired and are still considering whether to receive their vaccine. We should expect to see similar decisions going forward. As we have maintained, well drafted and reasonably implemented vaccine mandates and policies will be ruled enforceable. The courts, repeatedly, have agreed.
Until the cases reach the Court of Appeal, and perhaps the Supreme Court, there will be no certainty. The arbitration decision of Arbitrator John Stout, discussed last week, found insufficient evidence was put forward in that case to uphold the employer’s compulsory vaccination policy.
One might think that the millions killed and many more permanently weakened, the shutdown of the world economy, the misery experienced by countless people, and the tangible fear that COVID-19 has created among the workforce, including the many mental health challenges, is evidence enough. That decision also ignored the precautionary principle of law that courts and arbitrators must protect against serious risk even if the danger had not yet occurred and even if the scientific evidence remains imperfect (although the scientific evidence respecting the vaccine is very strong). That decision sets the clock back in the fight against COVID-19.
We suspect that that ruling will not be quickly replicated.
BY HOWARD LEVITT AND PUNEET TIWARI
