Raising the Bar

As we near the end of 2022, we reflect back on a year filled with virtual environments, increased connections and a renewed focus on wellness as we made it through another year since the COVID-19 pandemic began in 2020.

The pandemic has had a broad-ranging impact on employment law since March 2020. To wrap up 2022, employers may find it helpful to have a check-in on how Canadian courts and labour arbitrators have considered how pandemic-related measures have impacted the workplace and the labour market. We first review cases in which labour arbitrators have considered the reasonableness of vaccination policies, as these cases contain helpful commentary that may impact court jurisprudence. We then shine a light on how the pandemic has impacted wrongful dismissal claims. Finally, we note recent comments from the Ontario Superior Court of Justice regarding redactions in productions.

Special thanks to our colleague Jordynne Hislop for their contributions to this issue of Raising the Bar. And thanks as always to our great staff in Knowledge Management and Business Development.

Happy reading, happy holidays and happy new year!

Dianne Jozefacki and Justin Choy
Co-Editors

Part 1 – Cases you Need to Know About

Reasonableness of Vaccination Policies

Throughout the pandemic, employers have had to adapt their workplace policies to minimize the risk of the spread of COVID-19 to their employees and others. As part of this precautionary approach, we have seen the development and implementation of vaccination policies across a broad number of industries and sectors. Such policies have generally required either mandatory vaccination, or provided the choice between vaccination and regular rapid antigen testing.

To date, there has been little court jurisprudence assessing the reasonableness of such policies. However, labour arbitrators in Ontario have considered the issue on numerous occasions, and their conclusions may impact future court jurisprudence.

In brief, arbitrators in Ontario have consistently upheld the reasonableness of the implementation of mandatory vaccination policies, and vaccinate-or-test policies, particularly given the nature of the workplaces in which they were implemented. (Note, however, that while generally finding vaccination policies to be reasonable, some arbitrators have held that the provisions regarding discipline/termination for non-compliance have been unreasonable.)

Significantly, there has been little dispute among arbitrators that full vaccination is indeed the best method of reducing the contraction and spread of COVID-19. The following decisions reflect this pattern and provide helpful commentary.

In Ontario Power Generation and the Power Workers’ Union[1], Arbitrator Murray found that testing unvaccinated employees, and placing employees who refused to participate in the testing program on unpaid leave of absences, was prima facie reasonable. He noted that unvaccinated employees submitting to regular rapid antigen testing was a “necessary and reasonable step of taking a minimally intrusive test to demonstrate they are fit to work and do not present an unnecessary risk to their co-workers” and that “unvaccinated individuals who refuse to participate in reasonable testing are, in effect, refusing of their own volition to present as fit for work and reduce the potential risk they present to their co-workers.”

Similarly, in Hydro One Inc. and Power Workers’ Union[2], Arbitrator Stout concluded the employer’s vaccination policy was reasonable and that prohibiting employees from attending work if they did not provide proof of vaccination or a negative rapid antigen test was reasonable in the circumstances. That policy required all employees to provide the employer with proof of vaccination, confirmation of a medical exemption under the Ontario Human Rights Code or confirmation that they were declining to disclose their vaccination status, failing which they would be subject to regular COVID-19 rapid antigen testing prior to reporting to work. The Arbitrator found that the policy was a reasonable compromise that respected employee rights and balanced the various important interests.

An employer’s vaccination policy was again upheld in Toronto District School Board v CUPE, Local 4400, where Arbitrator Kaplan considered a policy which required employees to be fully vaccinated or to establish that they had a valid medical or Human Rights Code exemption by November 1, 2021, failing which they would be placed on non-disciplinary leaves of absence without pay. He concluded the policy was reasonable. He also accepted expert evidence that rapid antigen testing was “not a very good alternative to vaccination” and that the unequivocal evidence was that vaccination was the best method of reducing the contraction and spread of COVID-19.

Finally, a similar result was reached in Coca-Cola Canada Bottling Limited v United Food and Commercial Workers Union Canada, Local 175 where the employer policy eventually required that all employees were required to have at least one dose of the vaccine by January 31, 2022, failing which they would be placed on unpaid administrative leave. Ongoing failure to comply would have “consequences such as the possibility of significant discipline up to and including termination of employment.” Arbitrator Herman stated that a policy which articulates that discipline may be a consequence of non-compliance is appropriate and reasonable. He accepted the expert evidence that vaccines are the most effective means of protection with respect to susceptibility, the reduced changes of serious symptoms or effects of infection, and for limiting transmission.

While our courts have not yet gone so far as labour arbitrators in commenting on the reasonableness of vaccination policies, the Court of Appeal of Ontario recently considered the nature of a mandatory vaccination policy in National Organized Workers Union v. Sinai Health System. In this decision, the Court dismissed an appeal of an order of Justice Akbarali denying the union’s application for an interlocutory injunction. The union had sought the injunction to prohibit the employer, Sinai Health, from enforcing its mandatory COVID-19 vaccination policy pending the outcome of a number of policy grievances. One of the issues the Court of Appeal considered was the potential harm at issue if injunctive relief were not granted. The union argued that the harm was compelled vaccination without informed consent. The Court of Appeal dismissed this argument, finding that a mandatory vaccination policy does provide an employee a choice and is therefore not a denial of bodily autonomy, or informed consent. In particular, the employees could choose to be vaccinated or not, and in making that choice face potential employment consequences—as is the case with many other choices in the workplace.

It is apparent from these decisions that arbitrators and judges are recognizing that in the face of an unprecedented public health crisis, employers had to act in order to minimize the risk of the spread of the COVID-19 virus.

Ultimately, the reasonableness of a vaccination policy will be determined on a case-by-case basis with regard for the relevant considerations, including the nature of the workplace.

Part 2 – Shine a Light on…the Pandemic’s Impact on Wrongful Dismissal Claims

The Pandemic’s Impact on Notice Periods and the Duty to Mitigate

Since the beginning of the pandemic, courts have regularly been asked to consider the impact of the pandemic on various employment-related issues. One such issue is the intersection between the length of reasonable notice and the duty to mitigate, which arises in wrongful dismissal cases where employees’ common law termination entitlements will be impacted by their efforts to seek re-employment. In considering this issue, parties and the courts have turned their minds to whether and how the pandemic has impacted the labour market and general availability of alternate employment. In keeping with the fact-intensive nature of assessing reasonable notice periods, courts across Canada have taken a fact-specific approach when considering the effect, if any, the pandemic has had. We review some key decisions below.

In Williams v. Air Canada, the plaintiff successfully brought a wrongful dismissal action after she was dismissed in May 2020, approximately two months into the pandemic. She had 25 years of service. The Ontario Superior Court of Justice considered the impact of the pandemic on the length of the notice period, considering the availability of alternate employment. The Court held that “the economic uncertainty caused by the pandemic is a factor that may lengthen an employee’s notice period” and, considering other factors such as her age and length of service, awarded her 24 months’ notice. In finding that the plaintiff also did not fail to mitigate her damages, the Court held that it was mindful that the plaintiff’s “re-entry into the job market, as well as her job search, took place during the COVID-19 pandemic, with unprecedented restrictions and lockdowns, and associated economic uncertainty.” The Court made these comments with limited evidence of the specific effect of such measures on the plaintiff’s employment circumstances.

In Gracias v. Dr. David Walt Dentistry, the Ontario Superior Court of Justice took a different approach in addressing the impact of the pandemic on the labour market and reasonable notice periods. While the Court recognized that the pandemic “was very harmful for the overall economy,” it also noted that the pandemic’s “effect on particular sectors of the labour market was not uniform.” For instance, the Court noted the “high demand for nurses, health care workers, and others that were in the front lines of the battle” against COVID-19.

In order to support a longer notice period, the Court held that it is “a matter of evidence” as to whether or not the pandemic harmed the specific industry in question. In considering the impact of the pandemic on the plaintiff’s ability to find alternate employment, the Court noted that as a dental hygienist, there was “a robust enough market…that the downturn in the economy” did not justify a longer notice period. This finding was also supported by evidence that the plaintiff had submitted almost 140 job applications following her termination.

In Nassar v. Oracle Global Services, the Ontario Superior Court of Justice again reiterated that there must be evidence that demonstrates that the plaintiff was “in fact hampered in [their] efforts to obtain new employment” in order for the Court to extend the length of the notice period. Notably, the Court held that it is “not enough to suggest in a general way that the pandemic hampered employment efforts without supporting evidence on behalf of the wrongfully dismissed employee.”

It is apparent from the latter two decisions in particular that courts may approach broad claims of market difficulties arising from the pandemic with some skepticism, and will require actual evidence before making any determinations about the impact of the pandemic on notice periods and the duty to mitigate.

Leaves of Absence and Constructive Dismissal

Throughout the pandemic, employers have implemented many different strategies to weather the impact of the pandemic on business operations, and to mitigate against the risk of the spread of COVID-19 in the workplace. One measure has been to place employees on leaves of absences, for varying reasons. In response, employees have alleged that such leaves constitute constructive dismissal.

Compliance with Vaccination Policy

In Parmar v Tribe Management Inc., the British Columbia Supreme Court considered whether placing an employee on an unpaid leave of absence for refusing to comply with her employer’s mandatory COVID-19 vaccination policy (Policy) constituted constructive dismissal.

Ultimately, the Court held that the employer’s decision to place the employee on the unpaid leave was reasonable and that any losses she incurred as a result arose from her personal choice not to follow the Policy. In coming to this decision, the Court characterized the plaintiff’s refusal to comply with the Policy as a repudiation of her employment contract. Instead of accepting the repudiation, the employer placed the plaintiff on an unpaid leave of absence, and the court noted that the employer acted reasonably in doing so. Further, the Court opined that a reasonable employee in the plaintiff’s shoes would not have felt that an unpaid leave as a consequence of failing to comply with the Policy was a substantial alteration of an essential term of the employment contract.

This novel decision is helpful for non-unionized employers who have implemented a mandatory COVID-19 vaccination policy in that it supports an employer’s right to implement such a policy and place non-compliant employees on an unpaid leave of absence. We note that this decision is currently being appealed. A more detailed summary of Parmar v Tribe Management Inc. can be found in our Case In Point.

Infectious Disease Emergency Leave

Currently, case law interpreting whether the Infectious Disease Emergency Leave Regulation (O. Reg. 228/20) (IDEL) made under the Employment Standards Act, 2000 (ESA) bars a claim for constructive dismissal at common law remains undecisive.

In Coutinho v. Ocular Health Centre Ltd., the Ontario Superior Court rejected the employer’s position that the IDEL Regulation constituted a defence to a claim of constructive dismissal. The Court distinguished between constructive dismissal under the ESA and at common law. It held that the IDEL affected only constructive dismissal under the ESA and did not remove the plaintiff’s right to claim constructive dismissal at common law. This reasoning was subsequently adopted in Fogelman v. IFG[3].

However, in contrast to the decisions in Coutinho and Fogelman, the Ontario Superior Court in Taylor v. Hanley Hospitality Inc. held that the IDEL precluded a constructive dismissal claim at common law. The motion judge addressed Coutinho head-on, stating that the analysis in the decision was “wrong in law” and failed to properly apply the principles of statutory interpretation. The plaintiff appealed the ruling.

In its highly anticipated decision, however, the Ontario Court of Appeal declined to provide a decision on the substantive IDEL issue raised. The Court found that analytical errors “tainted” the decision of the motion judge and remitted the action for determination before another judge of the Superior Court.

In light of the conflicting decisions on point and the absence of definitive guidance from an appeal court, constructive dismissal claims in the IDEL context remain a live issue in Ontario.

Part 3 – Did you Know?

There has been very little judicial consideration on redaction in productions. In a recent case, Justice Perell provided the following helpful commentary on this point (at para 145):

Redacting information from documents to be produced is not something extraneous to the Rules of Civil Procedure, and while the text of the Rules of Civil Procedure wants for an express articulation of the possibility of redactions, redaction is implicit in several rules including the rules about affidavit of documents especially with respect to privileged documents, for which there is partial disclosure but no production of a privileged documents. In practice, as discussed above, litigants frequently redact privileged material from composite documents that contain relevant material, irrelevant material, and privileged material. Redaction is often on consent or unopposed, but redaction can be reviewed by the court. The court has the authority to seal documents, to make redaction orders, and to allow pseudonyms to be used. I agree with the notion arising from [the expert’s] report that the Legitimate Interests Exception is implicit within the Rules of Civil Procedure.

[1] 2021 CarswellOnt 18220

[2] Unreported, 31 January 2022

[3] 2021 ONSC 4042

Editor’s Note: This article has been updated since its original publication.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

COVID-19 Year-End Edition