In Blake v. University Health Network, the Ontario Superior Court of Justice recently discontinued an interim injunction that had been granted to provisionally preserve the employment status of a group of unionized and non-unionized employees who were subject to the potential termination of their employment for failing to comply with the employer’s mandatory COVID-19 vaccination policy.
The court did so despite the unionized and non-unionized employees having filed a notice of action in civil court challenging the validity of the employer’s mandatory COVID-19 vaccination policy, which required employees to be fully vaccinated by October 22, 2021 or face termination of their employment.
Issues and decision
The court addressed three issues, the first two dealing with the unionized employees, and the last, with the non-unionized.
At the core of the first question was whether the unionized employees’ dispute was subject to the exclusive jurisdiction of a labour arbitrator. Ultimately, the court found that it was, as the “dispute in question resides at the very core of the collective bargaining relationship and not at its periphery”. Accordingly, the court concluded that the unionized employees did not have standing, which meant that the court could not continue the injunction in respect of those employees.
Second, the unionized employees argued that if they did not have standing, the court should alternatively continue the interim injunction while staying their civil claim in favour of the arbitration process. Ultimately, while the court recognized it had the residual jurisdiction to do so, it declined to extend any further injunctive relief. The court reasoned that it would not be appropriate to exercise its residual jurisdiction, as none of the unions had asked the court to maintain the interim injunction in the first place.
Finally, the court concluded that the interim injunction should also not be continued with respect to the non-unionized employees, as any potential unlawful termination of these employees without proper notice would be remedied by way of monetary damages if the employees were in fact successful in proving unjust dismissal. Accordingly, the non-unionized employees could not demonstrate that they would suffer irreparable harm – which is normally key to obtaining interim injunctive relief – arising from the termination of their employment.
The court in this case was careful to stress that its decision does not address the question of the merits or legality of the employer’s mandatory vaccination policy. Nonetheless, the decision is an important development in the nascent Ontario jurisprudence with respect to mandatory vaccination policies. In particular, the decision may, depending on the circumstances, pose a significant impediment for non-unionized employees seeking an injunction to stay the termination of their employment for failing to comply with a mandatory vaccination policy. Likewise, the decision signals that unionized employees may have significant difficulties obtaining any such injunction in the absence of support from their union, and in any event, such issues may be better left in the hands of labour arbitrators; not the courts.
 2021 ONSC 7139.
 On October 22, 2021, the court heard an urgent motion from the employees for an interim injunction staying the termination of their employment. Ultimately, the court granted an interim injunction maintaining the employment status of the employees until a proper hearing on the motion could take place on October 28, 2021.