A court-ordered interim injunction is not an appropriate remedy to preserve the employment status quo of employees who refuse to be vaccinated against COVID-19 and who will be terminated as per their employer’s vaccination policy
Ontario
,
Canada
In Blake v. University Health Network, 2021 ONSC 7139, the plaintiff union and non-union employees of the University Health Network (“UHN”) requested an injunction to enjoin UHN from terminating employees who did not comply with the mandatory vaccination policy.
S.F. Dunphy J. of the Ontario Superior Court of Justice assessed the application for the interim injunction against the three-part test described in the Supreme Court of Canada decision in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC) (para 3):
- Is there a serious issue to be tried on the question of liability?
- Is there a real potential for irreparable harm to ensue if relief is not granted?
- Does the balance of convenience favour the granting of relief at this early stage?
Union Employees
The Court held that the unionized plaintiff employees did not have standing to seek an interim injunction from the Court (para 15). The Court noted that labour tribunals have exclusive jurisdiction to deal with all disputes between the parties arising from the collective agreement. The courts do not have overlapping jurisdiction (para 8). The ONSC found that the essential character of the dispute advanced by the plaintiffs lay squarely within the ambit of the collective agreements to which the unionized employees are a party (para 14). The Court noted that establishing what does and does not constitute just cause for the discipline or termination of employment of an employee is a fundamental aspect of collective agreements. (para 12). As a result, there was no serious issue to be tried with respect to the union plaintiff’s standing to bring the application before the court (para 15).
Non-Union Employees
With respect to the non-union employees, the Court ruled that the second branch of the RJR-Macdonald test was not satisfied as there was no potential for irreparable harm to ensue if the interim injunction was not granted (para 28). If the employees were found to have been wrongly terminated, monetary damages would serve as an adequate remedy (para 28).
Disposition
The Court dissolved the interim injunctions that had been temporarily granted against UHN.