Court can't weigh in on Ontario unionized workers' challenge of hospital vax mandate: lawyer

TORONTO -

An Ontario court has no jurisdiction to intervene in the case of unionized unvaccinated workers who are challenging a Toronto hospital network's COVID-19 vaccine mandate, the network's lawyers argued Thursday.

Last week, Ontario Superior Court Justice Sean Dunphy issued a temporary injunction that paused enforcement of the University Health Network's deadline for staff to be immunized. The network had said staff who didn't receive both shots by Oct. 22 would lose their jobs.

Several unvaccinated UHN workers have filed a lawsuit against the hospital network, alleging the vaccine mandate is illegal and discriminatory, and enforcing it amounts to coercion and invasion of privacy. They applied for the temporary injunction and are seeking to have it extended.

In a virtual hearing Thursday, UHN lawyer Bonnie Roberts Jones argued the matter falls within the scope of labour relations and thus must be handled through grievances, arbitration or other processes led by unions.

Jones said that while unions have the authority to turn to the courts when there is a gap in the labour relations process, there is no such gap here, and none of the unions whose members are involved in the case have sought court relief.

Many have launched individual and group grievances against the vaccine mandate, however, and those processes are underway, she said.

Lawyers representing the plaintiffs in the lawsuit, meanwhile, said that the court has the authority to grant urgent interim relief because that lies outside of the powers of an arbitrator.

"It is a completely novel situation ... and it requires the court's intervention," because there is a procedural gap, lawyer Ian Perry argued.

"That is exactly what the court's inherent jurisdiction is for - to protect individuals like these unionized plaintiffs who have nowhere else to turn, whose unions have failed them and have not protected their interests and have not protected (them from) the irreparable harm despite having months to do so."

The court should continue to protect the plaintiffs until the matter can be dealt with through arbitration or the lawsuit, Perry said.

"All we're asking for is time, time for these processes to unfold," he said.

Lawyers for the plaintiffs are also seeking to expand the temporary injunction, which applied to six workers, to include dozens more they say have asked to join the action.

They further argued it would be "premature" to make any findings on jurisdiction beyond the interim injunction.

Dunphy said it's never premature to determine jurisdictional issues because that's what keeps the checks and balances in place to protect the labour relations system.

He also suggested it could be a "circular argument" to say there is a procedural gap just because the unions have not sought the type of relief requested through the lawsuit. "If it's their job to decide whether to do it, doesn't that end the discussion on a gap?" he asked.

Lawyers for several unions whose members are among the plaintiffs say they alone -- and not their individual members -- have the authority to initiate a challenge. The unions have been granted standing to intervene in the case.

"It's always the unions driving that bus," said Caroline (Nini) Jones, who represents the Ontario Public Service Employees Union. "The members don't get to come here by themselves."

Of the unions involved, the Ontario Nurses Association was the only one to take a neutral stance on the issue of jurisdiction.

About 42.5 per cent of UHN's employees are unionized, with the remaining 57.5 per cent not represented by a union, court heard.

When it comes to the non-union workers, Dunphy noted that laws relating to the private sector give employers the right to fire any employee at any time.

In Ontario, "every private sector employee has the right to pursue damages for wrongful dismissal, but they don't have the right to sue for their job, to prevent termination or to get it back," he added.

Perry replied that the plaintiffs aren't suing to prevent their termination, but instead to prevent what they argue is an unlawful policy from being implemented and enforced.

Another lawyer for the plaintiffs, Ryan O'Connor, said that while private-sector employees can be fired at will, under the Ontario Human Rights Code, they cannot be fired for discriminatory reasons, including medical status.

In their response, lawyers representing UHN argued the health-care field has been enforcing mandatory injection polices for other vaccines for decades. They noted people are told before they enter nursing school that they will have to be vaccinated and can be fired if they refuse to do so.

The temporary injunction only applies to the employees involved in the case, and Dunphy has said it could not apply to any workers who have already lost their jobs.

The judge is set to deliver his ruling on the jurisdiction issue as it applies to the interim injunction, and whether to extend and possibly expand the temporary measure, in writing on Friday.

The hospital network's vaccine mandate goes beyond the province's policy, which requires health and education workers to be vaccinated against COVID-19 or tested regularly.

This report by The Canadian Press was first published Oct. 28, 2021.