Decisions on two COVID-19 cases last week hint at the judicial roadmap ahead.
The first was from Chief Justice Glenn Joyal of the Manitoba Queens Bench. He was deciding on a charter challenge by a group of churches in Manitoba to the province’s public health orders, which imposed restrictions on public gatherings, gatherings in private residences and the temporary closure of places of worship.
To put the decision in context, the court noted that this was “the worst global pandemic in over a century and, as of May, 2021, COVID-19 had infected over 120 million pole and killed over 2.5 million worldwide.”
The court found that the impugned measures were taken to “protect public health, meant to save lives, prevent serious illness and stop the growth of the virus from overwhelming Manitoba’s hospitals and acute healthcare system.”
In making its decision, the court noted, due deference must be given to medical and scientific expertise. The court concluded that, while the public health orders were in violation of parts of the charter, they were constitutionally justifiable as a reasonable limit on those rights under Section 1 of the charter.
This decision was unsurprising as there has been consistent judicial and arbitration board support for safety restrictions during COVID-19.
The decision of Justice Sean Dunphy of the Ontario Superior Court has received more attention.
It was the first judicial challenge to a vaccine mandate. This one required employees of the Toronto-based University Health Network to be fully vaccinated or face termination.
Both unionized and non-unionized workers were seeking an injunction restraining the University Health Network from firing those employees who refused to be vaccinated.
We might all remember the case of broadcaster Jian Ghomeshi, dismissed by the CBC for sexual harassment and related allegations. He sued in court and, as I opined in this column at the time, that lawsuit had no prospect of success because Ghomeshi was in a trade union and therefore could not sue civilly. CBC brought a motion to strike his lawsuit for that reason. Not only was his lawsuit dismissed, but he had the added indignity of having to pay CBC $18,000 for its legal costs in bringing the motion.
Justice Dunphy similarly noted that, if you are unionized, the dispute resolution scheme of compulsory arbitration set out in the Labour Relations Act in Ontario (and all provinces) is the exclusive body to determine any dispute, such as the discharge case under consideration, which can be arbitrated.
The fact that an arbitrator might not have the authority to order an injunction against the employees being fired in the first place was irrelevant since they could always, if they were successful months later, obtain damages and an order of reinstatement. Even the unions, who had ultimate legal carriage of any grievances, were not advocating for the injunction that these individual employees were seeking.
As the court said, the individual employees suing are asking the court to “substitute its judgement on the adequacy of the remedies pursued for that of the exclusive bargaining agent.”
The court “declined to disturb the judgement of the collective bargaining agents,” and concluded that, “I would not disturb the progress of the grievances over which the unions have exclusive right of carriage by imposing a remedy — even an interim remedy — that the union is not requesting.”
The fact that unions are not required to take their members’ cases, even in the event of a discharge, does not displace that exclusive authority and permit an employee to sue in court. This, I have previously pointed out, is one of the main disadvantages of unionization.
As the court said in the UHN case: “The legislature has gone to great pains to erect high walls surrounded by a deep moat to preserve and protect the labour relations environment from external incursions,” (such as a court action).
This action was also brought by non-union employees. The court made swift work of that, “as a general rule, private-sector employment may be terminated at will…” Money, by definition, is not only an adequate remedy, it is the only remedy.
Therefore, UHN was free to terminate them as well and the court would not grant an injunction preventing that.
Justice Dunphy left unanswered the real question that all government and private sector employees and employers are asking: whether a dismissal for refusing vaccination is cause for dismissal without severance.
Ontario Premier Doug Ford’s refusal this week to require its healthcare workers to be vaccinated against the wishes of the Ontario Hospital Association will be unhelpful to employers. Nevertheless, with virtually the entire medical community, including chief medical officers across the land advocating mandatory workplace vaccinations, employers remain likely to succeed when that question comes ultimately to the courts. However, with no court or even arbitrator yet having squarely adjudged on the issue, the result remains uncertain.