The court does not have the jurisdiction to challenge workers’ vaccination mandate for hospitals: UHN
TORONTO – An Ontario court has no jurisdiction to intervene in unvaccinated workers challenging a Toronto hospital network’s COVID-19 vaccine mandate, lawyers for the network argued Thursday.
Last week, Ontario Superior Court Judge Sean Dunphy issued a temporary injunction that suspended the application of the University Health Network’s deadline for staff immunizations. The network had said that staff who did not receive both blows by October 22 would lose their jobs.
Several unvaccinated UHN employees have filed a complaint against the hospital system, alleging that the vaccine’s mandate is illegal and discriminatory, and that its enforcement amounts to coercion and invasion of privacy. They have requested the temporary injunction and are asking for its extension.
In a hearing Thursday, UHN lawyer Bonnie Roberts Jones argued that when it comes to unionized staff, the issue falls within the realm of labor relations and therefore needs to be addressed through grievances, arbitrations or other union-led processes.
Jones said that while unions have the power to go to court when there is a loophole in the labor relations process, there is no loophole here.
“I would also like to point out that none of these bargaining agents made an application for interlocutory relief or injunction by way of civil action,” she said.
Meanwhile, lawyers representing plaintiffs in the lawsuit said the court had the power to grant urgent interim relief because it fell outside the powers of an arbitrator.
“This is a completely new situation (…) and it requires the intervention of the court”, because there is a procedural vacuum, argued the lawyer Ian Perry.
“This is exactly the rationale for the inherent jurisdiction of the tribunal – to protect individuals like those unionized plaintiffs who have nowhere to turn, whose unions have let them down and failed to protect their interests and did not protect them (from) irreparable harm despite having months to do so. “
The court should continue to protect plaintiffs until the case can be resolved through arbitration or trial, Perry said.
“All we ask 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 who they say have asked to join the action.
They further argued that it would be âprematureâ to draw any conclusions about jurisdiction beyond the interim injunction.
Dunphy said it was never premature to determine jurisdictional issues because that’s what keeps the checks and balances in place to protect the labor relations system.
Lawyers for several unions whose members are among the plaintiffs say that only they – and not their individual members – have the power to initiate a challenge. The unions have obtained standing to intervene in the case.
âIt’s always the unions that drive this bus,â said Caroline (Nini) Jones, who represents the Ontario Public Employees Union. “Members cannot come here alone.”
Among the unions involved, the Nurses Association of Ontario was the only one to take a neutral stance on the issue of jurisdiction.
About 42.5% of UHN employees are unionized, with the remaining 57.5% not being represented by a union, the court said.
Regarding non-union workers, UHN argued that the court could not force an employer to continue employing someone they wanted to fire. “This honorable tribunal has no jurisdiction to grant the relief sought in the plaintiffs’ petition,” its lawyers said in their written submissions.
Dunphy noted that laws relating to the private sector give employers the right to fire any employee at any time.
In Ontario, “every employee in the private sector has the right to claim damages for wrongful dismissal, but they do not have the right to sue for their employment, to prevent a dismissal or to recover it,” he said. -he adds.
Perry responded that the plaintiffs are not suing to prevent their dismissal, but rather to prevent the implementation and enforcement of what they claim is an illegal policy.
Another plaintiffs lawyer, 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 reasons discriminatory practices, including their state of health.
In their response, lawyers representing UHN argued that the healthcare field has had mandatory injection policies for other vaccines for decades. They noted that people are told before entering nursing school that they will need to be vaccinated and can be fired if they refuse to do so.
The temporary injunction only applies to employees involved in the case, and Dunphy said it cannot apply to workers who have already lost their jobs.
The hospital network’s mandate on the COVID-19 vaccine goes beyond provincial policy, which requires health and education workers to be vaccinated or tested regularly.
Dunphy is expected to render his ruling on the jurisdictional issue as it applies to the interim injunction, and whether to extend and possibly extend the temporary measure, in writing on Friday.
This report by The Canadian Press was first published on October 28, 2021.
Paola Loriggio, The Canadian Press