Recently, the Ontario Superior Court of Justice lifted a temporary injunction that had paused the enforcement of a University Health Network’s COVID-19 vaccination policy, on the grounds that it did not have the jurisdiction to grant the relief sought by the unvaccinated workers who brought the initial claim.

Interim Injunction to Prevent Employee Terminations Requested

In August 2021, the University Health Network (UHN) issued a mandatory vaccination that required all of its more than 17,000 employees to be fully vaccinated or face termination of their employment.

A group of UHN employees disputed this vaccination policy and brought an action requesting that an injunction be granted preventing UHN from terminating their employment until further argument could be heard on the merits and legality of the vaccine policy. 

Interim Injunction Granted to Preserve Status Quo while the Legalities of the Vaccination Policy are Examined

On October 22, 2021, the Ontario Superior Court of Justice granted the plaintiffs an interim injunction preserving the employment status quo and directed a preliminary hearing on the question of the Court’s jurisdiction to grant the relief sought by the plaintiffs. 

The Court emphasized that its decisions to grant the interim injunction did not address “the question of the merits or legality of the vaccine policy” adopted by the hospital. It merely decided that the plaintiffs’ status quo could be preserved with minimal impact on the parties until such time as the court had a “better opportunity to examine that very question.”

Dissolving the Interim Injunction

On October 29, 2021, the Court dissolved the interim injunction, considering the following three issues:

• Whether the unionized employees have standing in civil court
• Whether the Court had jurisdiction to grant the unionized employees the injunction
• Whether the interim injunction granted should also apply to non-unionized employees

Unionized Employees Standing in Civil Court

The central question raised by the plaintiffs was whether the UHN had the right to enact and enforce its mandatory vaccination policy. This is a labour relations issue that is governed by the parties’ collective agreement. Any issues between them must be resolved through the labour relations process as prescribed by their collective agreement. The Court noted that the Supreme Court has recognized the exclusive jurisdiction of the dispute resolution regime mandated by the Labour Relations Act and that this exclusive jurisdiction “must be carefully secured against interference from the civil courts.” 

The Court, therefore, found that the unionized employee did not have the standing to seek the relief requested through the civil courts and must pursue their complaint through the grievance and labour arbitration process. 

Court’s Jurisdiction to Grant the Unionized Employees an Injunction

In considering whether it had jurisdiction to grant the unionized employees an injunction, the Court noted the following: 

“[i]n an appropriate case a collective bargaining agent does indeed have standing to bring a civil claim for an injunction to restrain conduct that is the object of an arbitrable dispute. However, where judicial discretion exists, it must always and everywhere be exercised judicially.”  

The Court, however, was not satisfied that this was an appropriate case “to open the narrow window of residual jurisdiction.” It noted that none of the union members who intervened in the hearing requested that the court maintain the interim injunction in place for a period of time to permit them to bring their own applications, even though they all had standing to do so. The Court, therefore, deferred to the bargaining agents’ decision to pursue or not pursue a particular remedy given the fundamental nature of the labour relations principles involved. 

Application of the Interim Injunction to the Non-Unionized Employees 

The Court found that in order for the interim injunction to apply to the non-unionized employees, the non-unionized employees would have had to prove they would suffer irreparable harm if the interim injunction was lifted.

The Court stated that as a general rule, non-unionized employees in Ontario may be terminated at will.  Where cause is not alleged, or if cause is alleged and not proved, compensation is payable to the employee. The level of compensation may be a function of a written contract, of statutory minimum standards or of the common law. Given that fundamental principle, the Court found it hard to see how any non-unionized plaintiff could allege irreparable harm arising from threatened termination of employment. If the termination of their employment is not justified, the non-unionized employee is not entitled to their job back, rather they are entitled to compensation. “Money,” therefore, “by definition is not only an adequate remedy it is the only remedy.” 

The Court further found that there was no evidence to establish the legal test for an injunction in relation to whether the UHN vaccination policy contravenes the Human Rights Code.

For the above reasons, the Court found that it could not grant the injunction sought by the unionized plaintiffs and therefore dissolved the interim injunction granted to permit time for the validity of the vaccination policy to be addressed. 

Validity of Vaccination Policy not Addressed by the Court

It is important to note that the Court’s decision does not address whether the vaccination policy is valid, and it does not apply to any other employees (or employers) in similar situations outside those involved in the current proceeding.

The matter brought by the plaintiffs did not proceed past the point of a Notice of Action and a Notice of Motion for an interlocutory injunction brought thereunder. The Court said that the plaintiffs may or may not choose to alter the scope or breadth of the intended proceeding in light of the Court’s decision when the time comes to finalize and file a statement of claim. The Court considered it premature to strike in its entirety an intended action before it has been finalized as UHN requested.

Contact Toronto Labour and Employment Lawyers Grosman Gale Fletcher Hopkins LLP for Assistance with Injunctions

At Grosman Gale Fletcher Hopkins LLP we combine our many years of litigation experience with our deep knowledge of labour and employment to provide skilled representation for clients who are seeking to file an injunction or defend against one. Contact us online or at 416.364.9599 to speak with one of our knowledgeable labour and employment lawyers.