THE EMPLOYERS' EDGE
Ontario Court of Appeal Affirms Lower Court Decision Not to Grant an Injunction On COVID-19 Vaccination Policy
Practice Areas:
Labour Relations
Recently, the Ontario Court of Appeal (ONCA) released a unanimous decision (here) upholding a lower court’s refusal to grant an injunction against an employer’s COVID vaccination policy. You can find our blog on the first decision here. In that decision, Justice Dunphy declined to award the injunction on the basis that the unionized employees did not have a standing to bring the case forward and that the non-unionized employees would not suffer any irreparable harm from the policy. On appeal, the Court considered whether they should interfere with Justice Dunphy’s discretionary decision not to grant an injunction while parties await arbitration. Since the original decision was a discretionary one it attracted significant deference from the ONCA and could only be set aside if it was based on an error of law or a palpable and overriding error of fact.
The Union raised three grounds for appeal:
- The application judge erred in finding that if an injunction were not granted, the harm at issue was employees being placed on unpaid leave or terminated from employment.
- The application judge erred by failing to engage in an analysis of all three branches of the RJR-MacDonald test in considering whether to exercise the court’s residual jurisdiction.
- The application judge erred in finding that assessing the harm element in the jurisdictional analysis based on the subjective reaction of individual employees would be legally unworkable.
In analyzing the first issue, the court determined that the judge made no palpable and overriding factual error as the harm in question was the potential for being placed on leave without pay or being terminated under the vaccination policy. However, this was a harm that could be remedied by an arbitrator and therefore could not be considered irreparable. Considering the second ground the court found the argument of the appellant to be incorrect as it misconceived the application judge’s reasoning and failed to distinguish between the jurisdictional issue before the judge and the merits of the request for injunctive relief. As for the final issue, the court found that it would not be appropriate to consider whether there was any error as her comments regarding unworkability did not form the crux of her reasons for declining the injunction.
This is a welcomed decision for employers as it affirms Justice Dunphy’s original decision that aside from a “narrow window” in which judges can interfere, any disagreements arising from a collective agreement should only be heard by an arbitrator. Further, that injunctions sought for non-union employees must demonstrate irreparable harm, which does not include termination of employment.
Contact the legal experts at CCPartners for any questions about your collective agreement or unionized workplace.
Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.