IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and  
pursuant to a collective agreement  
BETWEEN:  
CHARTWELL HOUSING REIT (THE WESTMOUNT, THE WYNFIELD, THE  
WOODHAVEN AND THE WATERFORD)  
(the “Employer”)  
-AND-  
HEALTHCARE, OFFICE AND PROFESSIONAL EMPLOYEES UNION, LOCAL 2220,  
UBCJA  
(the “Union”)  
Policy Grievance #09-09-21 re Mandatory Vaccination Policy  
Before: Gail Misra, Arbitrator  
Appearing for the Employer:  
John Bruce, Counsel  
Mary-Claire Bass, Counsel  
Dave Pielas, Director Labour Relations  
Terry McCarthy  
Appearing for the Union:  
Mark J. Lewis, Counsel  
Danna Morrison, Counsel  
Paula Randazzo, President, Local 2220  
Kim Boyle, Vice President and Union Representative  
Alvaro Segnitz, Business Representative  
Hearings held by videoconference on November 19, 2021 and January 18, 2022  
Decision issued: February 7, 2022  
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DECISION  
I. I have been appointed pursuant to section 49 of the Labour Relations Act, 1995, to  
hear a policy grievance filed by the Union on September 8, 2021.  
2. The Union grieves on its own behalf and on behalf of its members that the  
Employer has imposed a mandatory vaccination policy on the employees of the four  
homes covered by the collective agreement. In particular, the Union claims  
breaches of Articles 2.02 and 18, and the Employer’s past practice. As remedies,  
among other things, the Union seeks findings of violation of the collective  
agreement, that the Employer withdraw the mandatory vaccination policy, and full  
compensation for all those employees adversely affected by the implementation of  
the policy.  
3. As there was no dispute regarding the basic facts underlying the grievance, no  
evidence was called, but documents were tendered and extensive submissions  
made. Based on the documents and submissions the facts are detailed below.  
FACTS  
4. The Westmount, the Wynfield, the Woodhaven, and the Waterford are long term  
care (“LTC”) homes located in south western Ontario. The Union represents  
Registered Practical Nurses, Personal Support Workers, Restorative Aides,  
Recreation Workers, Housekeeping staff, Dietary Aides, Laundry staff, and Cooks at  
these four Chartwell homes, covered by one collective agreement. While the  
collective agreement expired on June 24, 2020, there is no dispute that it continues  
in effect due to a statutory freeze until a new agreement is reached. In September  
2021 there were 705 employees in the combined bargaining unit.  
5. In the past, the Chartwell homes had a “Staff Immunization Program” (the  
“Immunization Program”) in their respective Infection Control Manuals. The  
effective date of this particular policy was August 2012, but it had most recently  
been updated in March 2020. Pursuant to the Immunization Program, health care  
workers at Chartwell homes were “recommended to follow” an immunization  
schedule that had been outlined by the National Advisory Committee on  
Immunization (“NACI”) and Provincial Vaccination Schedules. The immunization  
schedules included vaccinations for tetanus and diphtheria; measles, mumps and  
rubella; influenza vaccines at the beginning of each flu season; Hepatitis B; and  
Hepatitis A and C.  
6. Staff were specifically “encouraged to receive the influenza vaccine each year”,  
and the Immunization Program advised that “staff who are unimmunized will be  
excluded from work during an influenza outbreak”. If a staff member had a medical  
contraindication to receiving a flu vaccine, they had to provide written  
documentation to that effect from their physician. Those who refused to get a flu  
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vaccine had to complete a form and provide it to the Employer to be kept on file. By  
signing the form the employee agreed that they would be excluded from work  
during an influenza outbreak, and would only be able to return to work when they  
had got the flu vaccine and 14 days had elapsed; or, they could prove that they had  
obtained a prescription for antiviral medication (e.g. Tamiflu or Relenza), and had  
filled and taken the medication as prescribed; or, the outbreak had been declared  
over by the Medical Officer of Health or Local Public Health Unit.  
7. In a memo dated May 31, 2021, from the Associate Deputy Minister (“ADM”) of  
the Ministry of Long-Term Care, to all LTC home licensees, Erin Hannah noted that  
while 97% of all LTC residents had been fully immunized, only about 62% of all staff  
were fully immunized. Among other things, the ADM wrote that “in long term care  
homes, high vaccination rates also directly protect residents and support the highest  
quality of life”. As such, and in order to “keep the momentum going” she advised  
that as of May 31, 2021 the Minister of Long-Term Care was issuing a new Directive  
regarding the “Long-Term Care Home COVID-19 Immunization Policy”. All homes  
were required to have a COVID-19 Immunization Policy for all staff (and some  
others) which required proof of vaccination against COVID-19, or documented  
medical reasons for not being vaccinated, or that staff must participate in an  
approved educational program regarding COVID-19 vaccination. The effective date  
of the Minister’s Directive was July 1, 2021.  
8. In response to the Minister’s Directive, on June 24, 2021, the Employer  
promulgated a revised “Covid-19 Vaccination Policy for Staff, Students and  
Volunteers”, which was applicable to all staff working in its LTC residences (the  
“June 2021 Vaccination Policy”). By a letter dated June 24, 2021, but emailed to all  
staff on June 25th, the Employer advised staff about this policy; highlighted the  
requirements of it; highlighted that the deadline was July 30, 2021; and, indicated  
the consequences of failing to comply with the new policy.  
9. In particular, pursuant to the June 2021 Vaccination Policy, Chartwell strongly  
encouraged all eligible staff to receive a COVID-19 vaccination, unless it was  
medically contraindicated or there was a valid human rights exception that required  
accommodation. All existing staff were required to provide the Employer with proof  
of vaccination by July 30, 2021, or to provide written proof from a physician or  
nurse practitioner of a medical reason why they could not be vaccinated, or they had  
to provide proof that they had completed an educational program approved by  
Chartwell. They were told that if they did not provide proof of one of the three  
options, they would not be permitted to work or provide services at a Chartwell LTC  
residence until the requirements had been met. Those who were not fully  
immunized were required to wear certain personal protective equipment (“PPE”),  
and to submit to COVID-19 testing prior to each shift.  
10. Staff who had received only one dose of a COVID-19 vaccine by the deadline  
were expected to get their second dose within four months of their first dose, and to  
provide proof of the second vaccination to the Employer, or to provide proof of a  
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medical reason why they were not receiving it, or proof of completion of the  
educational program.  
11. The educational program mandated was the “Sunnybrook COVID-19 Vaccine  
Training Module”, which addressed how the vaccines work; vaccine safety related to  
the development of the vaccines; the benefits of vaccination against COVID-19; the  
risks of not being vaccinated; and the possible side effects of the vaccines. As well,  
each person would be asked to meet with a Chartwell Infection Prevention and  
Control Lead or their manager to discuss vaccine hesitancy.  
12. Although the Union was advised by email of the new policy on June 25, 2021, it  
did not object to the June 2021 Vaccination Policy. As counsel for the Union  
repeatedly stated in his submissions, HOPE is a union in favour of COVID-19  
vaccinations, and would like to see everyone get vaccinated.  
13. On August 26, 2021 Chartwell Retirement Residences issued a press release at  
10 a.m. indicating that, in a coalition with other national seniors’ living operators,  
including Extendicare, Responsive Group, Revera and Sienna, they were making  
COVID-19 vaccination mandatory for their respective LTC and retirement home staff  
across Canada. According to the press release, as of October 12, 2021, staff who  
were not fully vaccinated would be placed on an unpaid leave of absence, and, as of  
that date, all staff, new hires, students and agency personnel would be expected to  
be fully vaccinated. In addition to other rationales for their move to the  
requirement of mandatory vaccination, the coalition noted as follows in the press  
release:  
As rates of infection once again increase in communities across the country,  
unvaccinated staff are more likely to bring the virus to work. The safety of our  
residents in long-term care and retirement homes, who trust us to provide the care  
and services they need, is paramount. This policy will increase their level of safety  
and improve quality of life for residents by reducing the need for isolation and  
disruption of daily activities that result from outbreak restrictions. It also protects  
ongoing access to visits from family members, which are critical to the well-being of  
all those in our care for whom outbreak restrictions have been difficult.  
14. Kim Boyle, the Vice President of the Local, sent Dave Pielas, the Director of  
Labour Relations for Chartwell, an email (copied to Anthony Faul, Natalie Caputo,  
and Paula Randazzo) at 11:12 a.m. on August 26, 2021 indicating that she was  
hearing that some Chartwell managers in the homes were telling staff that there was  
a mandatory vaccine policy in place and that staff would have to be vaccinated by  
October 12, 2021 or go on a leave of absence. She asked if that was correct, and if  
so, that a copy of the policy be sent to her and to the President of the Local, Ms.  
Randazzo. There is no dispute that this was the first that the Union had heard on  
this subject, and that the information had come from its members.  
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15. About an hour later, at 12:23 p.m., Anthony Faul, the Human Resources Manager  
for Chartwell, responded to Ms. Boyle by email (copied to Mr. Pielas, Ms. Caputo, and  
Ms. Randazzo) to tell her about the joint press release. He indicated that Chartwell  
Corporate would send information about the announcement and a copy of the policy  
to the Union early in the following week. He stated that they appreciated their  
partnership with HOPE, and looked forward to discussions in the near future.  
16. Within six minutes of receiving that message, Ms. Randazzo, the President of the  
Local, sent a response to Mr. Faul at 12:29 p.m. She reminded him that the Union  
represented the four homes that are the subject of this grievance, as well as some  
other Chartwell facilities. She noted that while the Union strongly advocates for all  
Ontarians to be vaccinated, the law did not yet require it. She also noted that the  
collective agreements they had with the Chartwell facilities required notice and  
discussion, which had not occurred. In particular, she noted that the four homes in  
this case had a collective agreement provision that all new policies must have  
consultation and agreement of the Union. Finally she stated that the Union would  
also rely on past practice, and put him on notice that policy grievances would be  
filed. Ms. Randazzo indicated she would make herself available to meet and/or  
discuss the issues with the Employer.  
17. On the following Monday, August 31, 2021, Mr. Faul, as part of an email, sent Ms.  
Boyle and Ms. Randazzo and others, a link to the press release as well as attaching a  
copy of the new Chartwell COVID-19 Policy. He indicated that the policy would be  
communicated to staff “shortly”. The revised Policy was named the “Mandatory  
Covid-19 Vaccination Policy for Staff, Students and Volunteers” and stated that it  
would be “Effective September 2021” (the “September 2021 Mandatory Vaccination  
Policy”). It also specified that the effective date for mandatory vaccination would be  
October 12, 2021.  
18. In the week of August 30, 2021 all staff were advised of the new policy. The  
September 2021 Mandatory Vaccination Policy applied to all staff, students,  
volunteers, contract workers, agency staff, physicians, dieticians, and other personal  
service providers who had direct interaction with residents. It applied not only to  
Chartwell’s Ontario homes, but also those in B.C., Quebec, and Alberta. For existing  
staff, effective October 12, 2021 all those eligible to receive a COVID-19 vaccine  
were required to be fully vaccinated, and had to provide proof of one or all required  
doses or boosters of the vaccines approved by Health Canada. The only alternative  
was to provide written proof of a medical reason why the person could not be  
vaccinated, and the effective period for the medical reason (whether permanent or  
time limited).  
19. For those not fully immunized for medical reasons, or those waiting for a second  
dose, there were enhanced requirements for use of PPE and COVID-19 testing prior  
to each shift.  
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20. If an employee did not provide proof of vaccination or exemption for medical  
reasons by October 11, 2021, they would not be permitted to work thereafter until  
the requirements were met. The September 2021 Mandatory Vaccination Policy  
went on to state (at p. 3):  
Employees who fail to comply with this Policy will be placed on an unpaid  
administrative leave or may have their employment terminated. Failure to comply  
with this Policy by non-employee Staff may result in the termination of the Staff  
members contract, assignment or placement.  
(Emphasis in original)  
21. The Union filed the policy grievance that is before me on September 8, 2021,  
and thereafter the parties communicated to set up a Step 2 grievance meeting,  
which was ultimately held on September 17, 2021.  
22. On September 20, 2021 Ms. Randazzo sent Mr. Pielas an email asking if  
employees who were to be put on a leave of absence effective October 12th would  
subsequently be terminated from employment on a later date. Mr. Pielas responded  
that same day to say, on a without prejudice basis, that at that time the Employer’s  
intention was to place unvaccinated employees on an unpaid leave of absence. He  
indicated that Chartwell would communicate if anything changed.  
23. There may have been some further discussion between the parties about the  
Mandatory Vaccination Policy on September 27, 2021.  
24. On October 1, 2021 the ADM for the Ministry of Long-Term Care sent a memo to  
the LTC home licensees about an “Immunization Policy Update”. She indicated that  
as of August 31, 2021 reporting indicated that 90% of all staff, student placements  
and volunteers had received at least one dose of COVID-19 vaccine, and 86% were  
fully vaccinated. Erin Hannah also stated that effective October 1, 2021 the Minister  
of Long-Term Care had issued a revised Minister’s Directive indicating that by  
November 15, 2021 all existing staff (and others) must provide proof of COVID-19  
vaccination, or valid medical exemption. The ADM noted that:  
Moving to a province-wide mandatory vaccination policy is a progressive step that  
many in the sector have called for, and we know you are well-poised to  
communicate this rapidly to your teams, residents and families, and ensure that staff  
are supported to get their first dose as soon as possible in order to meet the  
November 15th deadline for two doses. Staff, support workers, students or  
volunteers who choose not to provide proof of vaccination, or proof of a valid  
medical exemption, by the required date will not be able to attend a long-term care  
home to work, undertake a student placement or volunteer.  
(Emphasis in original)  
25. As a result of this communication, it became clear that whatever may have been  
the Union’s view about the mandatory nature of the Employer’s September 2021  
Mandatory Vaccination Policy, as of October 1st the Minister of Long-Term Care had  
7
directed that LTC homes had to have a mandatory COVID-19 vaccination policy for  
staff and others.  
26. As such, the Union indicated at this hearing that it accepts that the Minister,  
pursuant to his power under s. 174.1 of the Long-Term Care Homes Act, 2007, has  
through Minister’s Directives made COVID-19 vaccinations mandatory for all staff  
working in long-term care homes, subject only to authorized medical exceptions.  
The Union is not challenging the constitutionality of the Minister’s Directives in this  
grievance.  
27. In addition to the requirement of mandatory COVID-19 vaccination, the October  
1, 2021 Minister’s Directive also required that LTC home licensees clearly tell  
everyone affected by the mandatory vaccination policy what the consequences of  
non-compliance would be. The Directive stated:  
2.4. Every licensee of a long-term care home shall clearly set out the consequences  
for individuals who do not provide proof per either subsection 2.1 or 2.2, including  
that they cannot attend the home for the purposes of working, undertaking a  
student placement, or volunteering. Any additional consequences shall be in  
accordance with the licensee’s human resources policies, collective agreements, and  
any applicable legislation, directives, and policies.  
28. On October 5, 2021 the Employer sent a letter to each of the bargaining unit  
members who had not yet complied with the September 2021 Mandatory  
Vaccination Policy. It reminded the individual that the policy required all eligible  
employees working at the particular LTC home be vaccinated with an approved  
COVID-19 vaccine by October 12, 2021. The employee was asked to provide the  
required written proof of having their vaccination, or that they qualified for a  
medical exemption. They were told that the education program regarding COVID-  
19 vaccinations remained available to them. The Employer highlighted in the letter  
that failure to comply by October 12th would result in the employee being placed on  
an unpaid administrative leave of absence effective October 13, 2021. The staff  
member was further warned that “despite being placed on an unpaid administrative  
leave your continued non-compliance with the policy may result in discipline up to  
and including the termination of your employment from the Residence.  
29. According to the Union, on October 12, 2021, sixteen bargaining unit employees  
were put on an unpaid administrative leave of absence due to their failure to get  
vaccinated or provide proof of a medical exemption. They received letters  
indicating that status, and were told about the Minister’s Directive of October 1,  
2021, which required staff to be fully vaccinated by November 15, 2021. As such,  
the Employer extended the deadline to provide proof of being fully vaccinated to  
November 15, 2021, which, pursuant to the Directive at that time, meant that the  
proof had to be of having received a second dose of an approved COVID-19 vaccine.  
As such the employee was advised that within a week of October 13, 2021 they  
should provide the Employer with an update on their vaccination status. If the  
8
employee was in compliance by then, the Employer would coordinate their return to  
work. The Employer again reiterated that failure to comply with the policy and the  
Minister’s Directive may result in discipline up to and including termination of  
employment.  
30. On October 12, 2021 the Employer also sent a letter to any employee who had  
received one dose of a COVID-19 vaccine, and had therefore been permitted to  
continue working pursuant to the Chartwell policy. The letter advised that in  
accordance with the Minister’s Directive, the employee had to provide proof of  
having received the second dose of the vaccine by November 15, 2021, or they  
would be put on an unpaid administrative leave at that point. The Employer also  
advised these individuals that failure to comply with the policy and the Minister’s  
Directive may result in discipline up to and including termination of employment.  
31. By an email dated October 14, 2021 Mr. Pielas advised Ms. Randazzo and others  
that the Employer had determined that having given employees education on the  
value of vaccination, as well as warnings about the deadlines for vaccination, and  
put non-compliant employees on unpaid leaves of absence, the Employer was going  
to be moving to the disciplinary stage of the September 2021 Mandatory  
Vaccination Policy. In particular, he indicated that those on leaves of absence would  
be notified that if they remained non-compliant and were not fully vaccinated by  
December 10, 2021, their employment would be terminated. He offered to meet  
with the Union to discuss this matter. It is unclear whether this email message  
reached Ms. Randazzo or not, but in any event, Mr. Pielas re-sent the same message  
on October 18, 2021.  
32. Following a request from the Union for a response to the grievance, on October  
18, 2021 the Employer provided the Union with its response denying the grievance,  
and asked that the grievance be put in abeyance. By an email dated October 20,  
2021, Ms. Randazzo indicated the Union could not do that in light of the Employer’s  
decision to terminate employees for non-compliance with the September 2021  
Mandatory Vaccination Policy. Thereafter, on or about October 29, 2021 the Union  
applied to the Minister of Labour for the appointment of an arbitrator under the  
expedited arbitration provisions of s. 49 of the Labour Relations Act, 1995.  
33. On October 18, 2021 the Union also responded to Mr. Pielas’ message regarding  
the prospect of termination of employees. It indicated that the Employer had not  
discussed the September Mandatory Vaccination Policy with the Union, which it  
viewed as a breach of Articles 18.4 and 18.5 of the collective agreement, especially  
as the policy had a disciplinary component that apparently included termination of  
employment. In the Union’s view, this represented a significant change from the  
former policy.  
34. On October 20, 2021 the Employer sent all employees who were non-compliant  
with the September 2021 Mandatory Vaccination Policy a letter indicating that the  
employer’s records continued to show that the employee had not provided proof of  
9
vaccination or proof of medical exemption. It again reminded employees of the  
November 15, 2021 Minister’s deadline for mandatory vaccination of LTC staff. The  
Employer requested that the employee advise it within two weeks of the date of the  
letter of their vaccination status, and it reminded the employee that the COVID-19  
vaccination education program was still available to them. The letter gave the  
employee notice that by December 10, 2021 all staff had to be vaccinated as  
required by the Policy, as well as the Minister’s Directive, and that continued non-  
compliance would result in termination of employment. This was the first clear  
warning to non-compliant employees that their employment would be terminated if  
they remained unvaccinated.  
35. On November 4, 2021 the ADM for the Ministry of Long-Term Care sent LTC  
home licensees a memo advising that all LTC staff were being priorized for booster  
COVID-19 vaccinations in light of the NACI recommendation due to gradual waning  
immunity after 6 months of receiving the second dose of the vaccine. By that point,  
residents in LTC homes had already been given the booster shot.  
36. The memo went on to indicate that one of the changes to the Minister’s  
Directive issued that day was as follows:  
The Directive will be updated to give staff, support workers, students, and  
volunteers who show proof of a first dose on or by November 15 until December 13,  
2021 to show proof of their second dose. This change reflects 8 weeks (rather than 4  
weeks) from the date individuals would have needed to receive their first dose in  
order to meet the November 15 deadline under the policy announced October 1,  
2021. Homes that voluntarily introduced mandatory vaccination policies with  
deadlines earlier than November 15 will be able to decide whether any adjustments  
are needed to their policies without going beyond December 13, 2021.  
(Emphasis added)  
37. This signaled a change from the original requirement that LTC employees had to  
be double vaccinated by November 15th to allowing them to have received one dose  
by then, so long as they received their second dose such that they could be  
considered double vaccinated by December 13, 2021. The memo went on to clarify  
that anyone with a single dose of a COVID-19 vaccine could not work in a LTC home.  
The memo also recognized that some homes may have voluntarily introduced their  
own mandatory vaccination policies with earlier deadlines.  
38. Section 2.4 of the Directive remained the same as in the earlier version. As set  
out above, that section required a LTC home’s mandatory vaccination policy to  
outline what the consequence of non-compliance could be.  
39. In November 2021 Chartwell revised its September 2021 Mandatory Covid-19  
Vaccination Policy for Staff, Students and Volunteers. In particular, it added to the  
“Purpose” section that “where the requirements of a Provincial order or directive  
exceed the requirements of this Policy, the Provincial order or directive must be  
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followed”. It appears that this was added because at the time of the promulgation of  
the September 2021 Mandatory Vaccination Policy, the province of Ontario had no  
mandatory vaccination directive, but as a result of the October and November 2021  
Minister’s Directives, there was now a provincial mandatory vaccination mandate.  
40. By a letter dated November 16, 2021, the Employer advised any employee who  
had received one vaccine dose, but not yet provided proof of a second dose, that in  
accordance with the latest Minister’s Directive, the deadline for providing proof of a  
second dose had been extended to December 13, 2021. Employees were again  
reminded that failure to comply with Chartwell’s Policy and the Minister’s Directive  
would result in termination of employment, with the deadline for compliance  
extended to December 13, 2021 from the original date of December 11, 2021.  
41. The Employer also sent letters to those employees who had been on  
administrative leaves of absence since October 13th because they had not provided  
proof of any vaccination, nor proof of medical exemptions. Those letters, dated  
around November 17, 2021, requested that the employee advise the Employer  
within two weeks of the date of the letter of their vaccination status, reminded those  
individuals of the mandatory vaccination requirements in both the Chartwell Policy  
and the Minister’s Directive; reminded them of the deadlines; and advised them that  
if they didn’t comply by December 13, 2021, their employment would be  
terminated.  
42. In late November and early December 2021 further letters were couriered to  
the employees who had been on unpaid leaves of absence since October 12, 2021.  
The three letters sent to Woodhaven employees, dated November 30, 2021,  
requested that the particular employee attend at a disciplinary meeting, to be held  
by telephone, on December 13, 2021 as they had still not provided the Employer  
with proof of full vaccination or of medical exemption. The employee was advised of  
their right to have union representation at the meeting. They were also advised that  
failure to call in at the appointed time would leave the Employer with no option but  
to conclude that the employee remained unvaccinated at that time, which would  
result in the termination of their employment.  
43. A similar letter was couriered to three employees of the Wynfield on December  
2, 2021, and to eight employees of the Westmount on December 3, 2021. One more  
such letter was sent to a Westmount employee on December 7, 2021. Thus, it would  
appear that in total 15 letters were sent to employees covered by the Union’s  
collective agreement.  
44. On December 13, 2021 the three Woodhaven employees were terminated from  
employment. The letters sent to each employee outlined that the Employer had just  
cause for the termination as a consequence of the employee’s failure to comply with  
the Chartwell Mandatory Vaccination Policy and the Minister’s Directive regarding  
mandatory vaccination of LTC home workers. The Employer outlined that it had  
provided education regarding COVID-19 vaccinations, and had sent reminders to  
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each employee of their obligation to comply with the Employer’s policy, the first on  
October 12th when the employee had been put on the administrative leave of  
absence for non-compliance, and further reminders that had followed in November  
2021. In two of the termination letters, the Employer noted that those employees  
had failed to attend the discipline meeting, so the Employer had concluded that they  
had not complied with the mandatory vaccination requirements.  
45. Also on December 13, 2021 nine Westmount employees were similarly  
terminated from their employment for cause, for essentially the same reasons as  
outlined above. In that workplace, two of the nine employees had failed to attend at  
the disciplinary meeting so the Employer had concluded that they had not complied  
with the mandatory vaccination requirements.  
46. On December 15, 2021 two of the Wynfield employees were similarly  
terminated from employment, for essentially the same reasons as outlined above. In  
that home, one of the two employees had attended the discipline meeting and one  
had not, so for that individual, the Employer had concluded that they had not  
complied with the mandatory vaccination requirements.  
47. The Minister’s Directive regarding the “Long-Term Care Home COVID-19  
Immunization Policy” was amended again on December 31, 2021. At that juncture  
the Minister directed that all LTC homes’ policies must require that employees get a  
third dose of COVID-19 vaccines in order to come into or work in a LTC home. For  
the purposes of this case, the most relevant section of the latest Directive, which sets  
the deadlines for proof of third doses (or proof of a medical exemption) states as  
follows:  
1.2 Subject to section 1.5, every licensee of a long-term care home shall  
ensure that no staff, support worker, student placement or volunteer who  
have not met the requirements of section 2 attends the home for the  
purposes of working, undertaking a student placement, or volunteering, as  
follows:  
a. Staff, support workers, student placements, and volunteers  
who are eligible for a third dose prior to January 1, 2022  
must meet the applicable requirements set out in section 2  
by January 28, 2022;  
b. Staff, support workers, student placements, and volunteers  
who are eligible for a third dose on or after January 1, 2022  
must meet the applicable requirements set out in section 2  
by March 14, 2022.  
48. Only LTC staff who are under 18 years of age are currently exempt from the  
requirement of a third vaccine dose by the deadlines set in the December 31, 2021  
Minister’s Directive (s. 2.4).  
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49. Clearly, the requirement for mandatory vaccination of LTC home workers (and  
others) continues as the pandemic evolves, new waves of infection occur, and there  
remain ongoing concerns for the health and safety of everyone, but particularly for  
those more vulnerable people who live in long-term care homes. In light of the  
Omicron variant of COVID-19, and concerns about its transmissibility, in order to  
improve their protection against the virus, the Minister directed that LTC home  
residents begin receiving a fourth dose of an mRNA vaccine if at least three months  
had elapsed since their third dose.  
50. Following issuance of the December 31, 2021 Minister’s Directive, on January 6,  
2022, Chartwell sent each of its employees a letter outlining the need for them to get  
a third dose of a COVID-19 vaccine in order to keep working in a LTC home. The  
deadlines from the Directive were given, and staff were advised to provide proof of  
receipt of the booster to their manager or Infection Control Lead. A “Frequently  
Asked Questions” page was attached to the letter to explain what a COVID-19  
booster is; why someone should get a booster; etc.  
IMPACTS OF COVID-19 ON THE FOUR HOMES AND ON THE ONTARIO LONG-TERM  
CARE SECTOR  
51. The Employer prepared detailed information regarding the impact of COVID-19  
infections at the Westmount, the Wynfield, the Woodhaven, and the Waterford, as  
well as information on the impact of the pandemic on the LTC sector in Ontario  
more generally.  
52. Since the beginning of the pandemic in early 2020, there have been numerous  
outbreaks in the four homes in question here. The following are summaries of some  
pertinent data for each home:  
The Waterford: There have been five outbreaks, the first commencing on  
April 19, 2020. The fifth and most recent outbreak commenced on January  
11, 2022 and is still ongoing. In all, 107 residents have been infected; 87 staff  
have been infected, with 7 still pending PCR confirmation as of the date of the  
January 2022 hearing; and there have been 18 deaths, all apparently among  
residents as there was no evidence in this case that any staff member had  
died as a result of COVID-19 infection.  
The Westmount: There have been five outbreaks, the first commencing on  
April 2, 2020. The fifth and most recent outbreak commenced on December  
23, 2021 and is still ongoing. The two longest outbreaks lasted  
approximately two and a half months each. In all, 86 residents have been  
infected; 82 staff have been infected, with 1 still pending PCR confirmation as  
of the date of the January 2022 hearing; and there have been 19 deaths, all  
apparently among residents as there was no evidence in this case that any  
staff member had died as a result of COVID-19 infection.  
13  
The Woodhaven: There have been four outbreaks, the first commencing on  
April 20, 2020. The fourth and most recent outbreak commenced on January  
1, 2022 and is still ongoing. The longest outbreak lasted approximately three  
months, although all the others were relatively short. In all, 67 residents  
have been infected; 100 staff have been infected, with 12 still pending PCR  
confirmation as of the date of the January 2022 hearing; and there have been  
13 deaths, all apparently among residents as there was no evidence in this  
case that any staff member had died as a result of COVID-19 infection.  
The Wynfield: There have been four outbreaks, the first commencing on May  
13, 2020. The fourth and most recent outbreak commenced on December 18,  
2021 and is still ongoing. The current outbreak is the longest yet at this  
home, at about one month as of the date of the January 2020 hearing. In all,  
27 residents have been infected; 38 staff have been infected, with 3 still  
pending PCR confirmation as of the date of the hearing; and there has been  
one death of a resident as a result of COVID-19 infection.  
53. In Wave 1 of the pandemic the median duration of an outbreak in Ontario LTC  
homes was 14 days. In Wave 2 it was down to 5 days. Nonetheless, as is clear from  
the Employer’s data, at the four homes in question here, there have been a number  
of outbreaks that have been far longer than that.  
54. Although the Employer provided the cumulative case count for all Ontario LTC  
homes for both the periods between April 24, 2020 and November 9, 2021, and for  
April 24, 2020 to January 13, 2022, the more pertinent data is that from before the  
dates the Employer terminated the fourteen non-compliant employees in mid-  
December 2021. As of November 9, 2021, there had been 15,643 resident positive  
cases and 3,824 resident deaths. As of that same date, there had been 7,409 staff  
positive cases, and 13 staff deaths.  
55. There are considerable restrictions imposed in a LTC home when there is an  
outbreak. These negatively impact the quality of life of residents and staff  
workloads.  
56. Some of the negative impacts on residents include the following:  
- They are isolated in their rooms  
- There may be preventative wandering barriers for residents with cognitive  
disabilities  
- Staff must use gloves, gowns, procedure masks and eye protection within  
two meters of any resident in the outbreak area  
- Residents must be cohorted (so may not be in their regular rooms)  
- Visitors are restricted to only Essential Visitors/Designated Caregivers (and  
there may only be one such person)  
- Non-urgent medical appointments are re-scheduled  
- Communal dining is modified or suspended  
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- Indoor social activities are modified or suspended  
57. Some of the negative impacts on staff include the following, most of which  
increase their workload:  
- Since all residents in an outbreak area are considered infected or potentially  
infected, they must don and doff PPE every time they are interacting with  
such residents  
- Each resident must be screened at least once every day  
- Since residents have to be cohorted, it means staff may have to move them  
from their own rooms to new rooms  
- Equipment must be thoroughly cleaned and disinfected between use  
- Meals must be given to residents in their rooms, not in communal areas  
- With only one designated caregiver allowed in, staff have fewer people  
helping with the general care and well-being of residents  
58. Based on the data presented in this case there is little doubt that the vast  
majority of symptomatic COVID-19 cases among LTC health workers is made up of  
those who are either partially vaccinated or unvaccinated. In the period from  
December 14, 2020 to June 30, 2021, of the total of 2,737 health care workers who  
got COVID-19, 112 were partially vaccinated and 2,287 were unvaccinated. The  
latter unvaccinated workers made up 83.6 per cent of the total. As of data collected  
between December 14, 2020 and June 30, 2021, no vaccinated and PPE protected  
LTC home workers had been hospitalized due to COVID-19 infection. The numbers  
indicate the high degree of vaccine efficacy for LTC home workers.  
59. While the Delta and Omicron variants were found by scientists to be more  
infectious than earlier variants of COVID-19, the COVID vaccines have proven to be  
highly effective in reducing symptomatic disease, severe infection, and transmission.  
60. In her January 14, 2022 memo to LTC home licensees regarding “Clarification on  
Immunization Policy and an update to the COVID-19 Guidance Document”, the ADM  
for the Ministry of Long-Term Care stated as follows regarding the reasoning  
underlying the need for LTC workers to get third doses of COVID-19 vaccines:  
Third doses provide important protection from COVID-19. It is important for you  
and your leadership to communicate this to your team members. About 64% of LTC  
staff have a third dose based on COVax data. Based on home reported outbreak  
information provided to the Ministry directly, among positive staff cases, about 7%  
have 3 doses and about 93% have two doses (based on information from January  
12th [2022]).  
61. The Employer submitted evidence regarding the exacerbated staffing shortages  
during the pandemic. However, it is unclear how this assists in considering the  
issues before me in this case since Chartwell has introduced a policy that has the  
15  
potential of leading to, and in this instance did lead to, the termination of fourteen of  
its LTC workers.  
THE COLLECTIVE AGREEMENT  
62. The following provisions of the collective agreement were referred to in the  
parties’ submissions:  
Article 1 Purpose  
1.2 It is recognized that employees wish to work together with the Employer to  
secure the best possible care and health protection for residents.  
1.3 The Employer and the Union recognize that the attitude, ability and efficiency of  
all employees affect to a large extent the care, welfare, safety and comfort of the  
residents of the Home.  
Article 2.2 Management Rights  
The Union acknowledges that it is the exclusive right and function of the Employer  
to manage and direct its operations and affairs in all respects and, without limiting  
or restricting this right and function:  
(a) To determine and establish standards and procedures for the care, welfare,  
safety and comfort of the residents of the facility;  
(b) To maintain order, discipline and efficiency, and to make, alter, and enforce  
reasonable rules and regulations to be observed by the employees; …  
(c) To hire, classify, direct, promote demote, transfer, discipline, suspend and  
discharge employees; provided that a claim of discriminatory classification,  
promotion, demotion, discipline or suspension, or a claim by an employee  
who has completed probation that he has been discharged without just  
cause, may become the subject of a grievance and be dealt with as  
hereinafter provided.  
(d) To exercise any of the rights, powers, functions or authority which the  
Employer has prior to the signing of this Agreement except as those rights,  
powers, functions or authorities are specifically abridged or modified by this  
Agreement.  
(e) The Employer shall exercise these rights in a fair manner consistent with  
this Agreement.  
Article 7.9 Infection Prevention Control  
The Employer will use its best efforts to make all affected direct care employees  
aware of residents who have serious infectious diseases. The nature of the disease  
need not be disclosed. Employees who are not direct care employees will be made  
aware of special procedures required of them to deal with these circumstances. The  
parties agree that all employees are aware of the requirement to practice universal  
precautions in all circumstances.  
Where the Employer identifies high risk areas where employees are exposed to  
infection or communicable diseases for which there are available protective  
medications or procedures they shall meet to discuss the treatments, medications  
16  
that [are] available and the extent of coverage available for such treatments and or  
medications the Employer will provide.  
It is understood that each employee is responsible for following prescribed policies  
and procedures and recommendations of the Employer related to the above. Failure  
to do so may result in the employee being responsible for the total costs of  
treatments medication etc.  
Article 10 Seniority  
Loss of Seniority  
10.10 An employee shall lose all service and seniority and employment deemed  
terminated if she:  
(b) Is discharged and the discharge is not reversed through the grievance or  
arbitration procedure;  
(c) has been laid off for twenty-four (24) calendar months;  
Article 18 Miscellaneous  
18.4 Prior to effecting any significant changes in rules or policies which affect  
employees covered by this Agreement, the Employer will discuss the changes with  
the Union and provide copies to the Union.  
18.5 Existing rights, privileges, benefits, practices and working conditions shall be  
continued to the extent that they are more beneficial and not inconsistent with the  
terms of this Collective Agreement unless modified by mutual agreement of the  
Employer and the Union.  
UNION SUBMISSIONS  
63. As was noted at the beginning of this decision, each party made lengthy  
submissions. While I will attempt to outline counsels’ arguments, their respective  
reviews of the jurisprudence will not be recounted.  
64. The Union relied on the following jurisprudence in making its arguments: Tung-  
Sol of Canada Ltd. v. United Electrical, Radio and Machine Workers of America, Local  
512 (Collective Agreement Grievance), [1964] O.L.A.A. No. 9, 15 L.A.C. 161 (R. W.  
Reville); Chartwell Seniors Housing REIT (Wynfield, Waterford, Westmount &  
Woodhaven) and Healthcare, Office and Professional Employees Union, Local 2220,  
(Unreported Interest Arbitration award dated March 17, 2014, D. Randall, Chair);  
KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537 (Veronneau Grievance),  
[1965] O.L.A.A. No. 2, 16 L.A.C. 73 (J. B. Robinson); Canadian Union of Public  
Employees, Metropolitan Toronto Civic Employees’ Union, Local 43 v. Metropolitan  
Toronto (Municipality), (1990) 74 O.R. (2d) 239 (Ont. C.A.); Sault Area Hospital v.  
Ontario Hospital Assn. (Vaccinate or Mask Grievance), [2015] O.L.A.A. No. 339, 262  
17  
L.A.C. (4th) 1 (J. Hayes); St. Peter’s Health System v. Canadian Union of Public  
Employees, Local 778 (Flu Vaccination Grievance), [2002] O.L.A.A. No. 164, 106 L.A.C.  
(4th) 170 (G. J. Charney); Chinook Health Region and U.N.A., Local 120, [2002] A.G.A.A.  
No. 105, 113 L.A.C. (4th) 289 (T. Jolliffe); Carewest v. Alberta Union of Provincial  
Employees (Nasr Grievance), [2001] A.G.A.A. No. 76, 104 L.A.C. (4th) 240 (P.A. Smith);  
United Food and Commercial Workers Union, Canada Local 333 and Paragon  
Protection Ltd. (COVID-19 Vaccination Policy grievance), (Unreported decision dated  
November 9, 2021, F.R. Von Veh); Electrical Safety Authority and Power Workers’  
Union, Grievance re COVID-19 Vaccination Policy, (Unreported decision dated  
November 11, 2021, J. Stout)(the “November 2021 ESA decision”); Ontario Power  
Generation and Power Workers’ Union, Re OPG-P-185, (Unreported decision dated  
November 12, 2021, J. C. Murray); Norquest College v. Norquest College Faculty Assn.  
(Policy Grievance), [2021] A.G.A.A. No. 62 (Andrew C.L. Sims); Toronto Hospital and  
O.N.A., [1994] O.L.A.A. No. 68, 41 L.A.C. (4th) 196 (P. Knopf).  
65. As the Union described it, the core rule in the September 2021 Mandatory  
Vaccination Policy is that “Chartwell requires all eligible Staff to receive COVID-19  
vaccine, unless it is medically contraindicated”. The Union is in favour of  
vaccinations. Notwithstanding whatever may have been the Union’s original  
arguments about the mandatory nature of the policy, once the Minister of Long-  
Term Care exercised his power pursuant to s. 174.1 of the Long-Term Care Homes  
Act, 2007 (the “LTHCA”) on October 1, 2021 to make COVID-19 vaccinations  
mandatory for all staff and others working at LTC homes in Ontario, subject to  
certain medical exceptions, the Union recognizes that mandatory vaccination is now  
the legal requirement. It is not challenging the constitutionality of the Minister’s  
Directive in this grievance.  
66. The Union takes issue with the policy to the extent that it makes failure to get  
vaccinated disciplinary. It is the Union’s position that the portion of the policy that  
makes failure to get vaccinated a disciplinary offence, that may lead to dismissal, is  
unreasonable, is a violation of the collective agreement, and should not be allowed  
to stand. Pursuant to the policy, on October 12, 2021 the Employer put 16  
bargaining unit members on unpaid administrative leaves because of their failure to  
provide proof of vaccination. Thereafter, on October 20, 2021 the Employer advised  
those employees that if they remained unvaccinated by December 10, 2021, their  
employment would be terminated. Due to the Minister’s Directive of November 4th,  
that deadline for compliance was moved to December 13, 2021. Fourteen  
bargaining unit members were subsequently terminated from employment  
following December 13, 2021, for just cause as they did not comply with the policy.  
67. The Union points to the Minister’s Directive of October 1, 2021. At s. 2.4 the  
Minister required every licensee of a LTC home to clearly set out the consequences  
of non-compliance with the mandatory vaccination requirements, including that  
they could not attend at the home to work, as well as any additional consequences  
that may arise out of the licensee’s human resources policies, collective agreements,  
and any applicable legislation, directives and policies. The Union does not dispute  
18  
that employees who did not prove their vaccination status had to be put on unpaid  
administrative leaves. However, the Union argues that they should not have been  
subject to being disciplined or terminated from employment, as that was not a  
requirement of the Directive, and is contrary to the Employer’s collective agreement  
obligations, which the Directive recognized would be applicable.  
68. The Union argues that the policy should be found to be unreasonable based on  
the arbitral jurisprudence regarding employer promulgation of rules and policies,  
and the emerging jurisprudence regarding COVID-19 vaccinations. The Union relied  
on the KVP decision, cited above, as the standard against which the Employer’s  
policy should be tested for reasonableness. In particular, it asserts that one must  
consider the reasonableness of the nature of the response for non-compliance with  
the policy, in this case termination of employment. It argues there is no legitimate  
and important management interest in discharging the individuals affected based on  
the facts in this case.  
69. The Union relied particularly on the November 2021 ESA decision, cited above,  
for the proposition that Arbitrator Stout’s finding that a nuanced approach is  
appropriate in the COVID-19 situation, and that there should be a balancing of the  
concerns of both employers and workers. is correct.  
70. The Union asserts that applying that approach to this case, the most difficult  
aspect has already been addressed for me as the Minister has declared that it is in  
the interest of the public, residents of LTC homes, their families, and the vast  
majority of people who are vaccinated that the staff in these homes be fully  
vaccinated. Thus while Arbitrator Stout recognized that individuals have the right  
to security of their person, and therefore to decide what they take into their bodies,  
the balancing of that right with those of the public interest, pursuant to the  
Minister’s Directive, has been found to weigh in favour of the requirement of  
mandatory vaccination if one wants to actively work in LTC.  
71. However, the Union argues that is not the only balancing of interests that is  
required. It is also necessary to balance the interests of the Employer with those of  
the employees, and in this regard the Union asserts it is difficult to understand what  
the Employer interest is in a rule that leads it to terminate its employees rather than  
let them remain on an unpaid administrative leave of absence, when following its  
own deadline, it had no monetary obligations for those employees, and they were no  
longer accruing seniority. Pursuant to Art. 10.9, an employee only continues to  
accumulate seniority and have their benefits paid for the month that the leave  
commences and one month following, provided that the employee continues to pay  
tier portion of the cost sharing arrangement. Thereafter, if an employee wishes to  
have continuing benefits coverage, they must pay the full cost of the benefit  
premium. The Union states that in this instance, the Employer’s payment for  
benefits would have expired in mid-December 2021 in any case since the affected  
employees had been put on unpaid leaves of absence in mid-October. As well, their  
seniority would have stopped accruing at that juncture.  
19  
72. The Union points out that of the 705 employees in the bargaining unit, the  
number who have not been vaccinated represents under 2 per cent. As such,  
draconian action was not needed, so the Union asks what the Employer concern to  
be addressed is here, and why an administrative leave would not have been  
appropriate. It points out that the staffing shortages in these workplaces is  
staggering, so it asks why the Employer would terminate people who are a valuable  
resource rather than leaving them on a leave of absence until they can come back to  
work. The Union asserts further that leaving the small number of affected  
employees on unpaid leaves of absence would not preclude the Employer from  
filling the vacancies left as there is nothing to impede it from hiring other workers.  
73. By contrast to the Employer’s unclear interests in the balancing exercise, for the  
affected employees, the Union argues that they stood to lose their employment  
when they had done nothing wrong. When the affected employees were hired there  
was no requirement that they be vaccinated; they have worked for years to  
accumulate seniority; they decided for various reasons that they would not take the  
COVID-19 vaccination, and took the consequences of being put on leaves of absence  
without pay; but now, they are being terminated from employment and losing their  
seniority in a climate where it is impossible to know what the future holds as  
regards the pandemic. The Union argues that these employees should have been  
given the time and opportunity to change their minds, and should have been  
encouraged to do so without setting hard and fast deadlines after which they were  
to lose their jobs. As the Union put it, some people change their minds in what it  
described as the “Paul on the road to Damascus” moment, after the illness or death  
of another family member. It argues that leaving employees on a leave of absence  
for a period akin to layoff would allow for such a possibility, rather than outright  
discharge.  
74. The Union argued that instead of dismissing employees, as the September 2021  
Vaccination Policy contemplated, the Employer could have laid people off for up to  
24 months, thereby preserving their seniority rights for a reasonable period of time.  
The Union posits that the COVID-19 situation is an evolving one, and that we don’t  
know what the future will be 18 months from now. It suggests that a Minister may  
have a different directive in the future, and could change their mind. Hence, the  
Union suggests that the Employer should have permitted the affected individuals to  
remain on unpaid administrative leave for an appropriate period of time, which it  
suggests, could be akin to the period of a layoff.  
75. The Union states that while it believes in vaccination, the decision to get  
vaccinated is a difficult one for some people, and they should have more time to  
come to the right decision based on changes in their own circumstances or their  
views. As an example, the Union noted that one of the individuals who has not got  
vaccinated, and was therefore negatively affected by the application of the policy, is  
a breastfeeding mother. While the medical evidence is that there is no harm to a  
child from a breastfeeding mother being vaccinated, the Union states that none of us  
20  
would argue that a mother has the right to make a decision about vaccination while  
breastfeeding. It states that the situation should resolve itself when the mother  
stops breastfeeding, which she apparently plans to do when her child, who is now 3  
years old, starts attending kindergarten.  
76. In the balancing of interests between those of the Employer and those of the  
employees, the Union asserts that the employee interest in the seniority rights for  
which they have worked hard is important, especially in respect of their work over  
the last 18 months during the pandemic, when they have been working on the front  
lines, risking their own health and lives, and have seen people die.  
77. The Union asks that, as did Arbitrator Stout in the November 2021 ESA decision,  
cited above, I find that discharging an employee must be the last resort when there  
is no other reasonable approach that would work to meet an employer’s key  
interest. In this case that point had not been reached as the vast majority of  
employees had been vaccinated, so that dismissing the tiny minority who had not  
was draconian and the Union asks that the policy be found unreasonable in that  
regard.  
78. The Union also relies on Articles 18.4 and 18.5, and argues they must be  
considered in assessing the Employer’s actions in the promulgation of this policy.  
Article 18.4 requires the Employer, if effecting any significant changes to rules or  
policies, which affect bargaining unit employees, to discuss the changes with the  
Union and to provide copies to the Union. Pursuant to Article 18.5, all existing  
rights, privileges, benefits, practices and working conditions are to be continued to  
the extent that they are more beneficial and not inconsistent with the terms of the  
collective agreement, unless modified by mutual agreement of the Employer and  
Union. Based on the Employer’s Articles 18.4 and 18.5 obligations, the Union  
asserts that the Employer could have reached out to the Union to discuss a  
mandatory vaccination policy, and they could have reached an agreement that  
would have been something like the layoff 24 month provision.  
79. According to the Union, these workplaces have experience with vaccination  
requirements and had in place a 2012 Immunization Program. Every year during flu  
season there are flu vaccination requirements for employees. The practice has been  
that if a flu outbreak is declared by local health authorities, only staff who are  
vaccinated can work, or if they have taken a course of Tamiflu. Any staff who have  
neither are put on unpaid leaves until the outbreak is declared over. Failure to get  
the flu vaccination has never been considered a disciplinary matter, no employee  
has ever been disciplined in this regard, and no one has been dismissed. [The  
Employer does not dispute the existence of the Immunization Program or this  
historic practice.]  
80. Another example the Union gave of how the Employer has addressed a  
mandatory requirement is that of continuing education. Employees who have not  
met the mandatory continuing education requirement by an appointed date have  
21  
historically been told that they will not be scheduled until they can prove  
completion. According to the Union, no staff has ever been disciplined for failing to  
meet the mandatory education requirement. [The Employer mildly disputed this  
was the practice, but no evidence was called to counter the Union’s assertion.]  
81. With respect to the September 2021 Mandatory Vaccination policy, the Union  
asserts that despite the availability of vaccines to health care workers for months  
before the June 2021 Vaccination Policy, the Employer had not required employees  
to be vaccinated. Employees were only told in late August that they had to be  
vaccinated in order to work after October 12, 2021. It notes that up to that point,  
the Employer’s June 2021 Vaccination Policy did not require vaccination, and  
permitted other means of meeting the Employer’s COVID transmission concerns,  
such as enhanced PPE and testing before every shift.  
82. In respect of its Art. 18.4 argument, the Union notes that the Employer  
announced the new policy through a press release on August 24, 2021, without any  
prior discussion with the Union, or provision of a copy of the new policy, or even  
provision of a copy of the press release to the Union. The Union argues that given  
the language of this provision, and the fact that the Employer was introducing a  
mandatory vaccination policy, with a disciplinary aspect for non-compliance, these  
were significant changes to the existing policy which required Chartwell to provide  
the Union with a copy of the proposed policy, and to discuss the changes with the  
Union prior to effecting them.  
83. Based on the evidence, the Union asserts that it was only after the Union had  
learned about the new policy through its members on August 24, 2021, after the  
press release, and contacted Chartwell’s Labour Relations staff, that any  
“discussion” began. Even after that point, the Union maintains there was not in fact  
any meaningful discussion, and the Union was not provided with a copy of the new  
policy until the following week. According to the Union, the evidence shows that the  
Employer ignored the Union and did not discuss the new policy at all.  
84. It asserts that the Employer had obviously been in discussions with the other  
large LTC providers for some time before the August 24th press release issued, so it  
had to have been contemplating what the mandatory vaccination policy would be, as  
it was to be consistently introduced at all the LTC providers in the coalition. Yet,  
according to the Union, the Employer ignored its collective agreement obligations to  
HOPE by failing to discuss the significant policy changes with the Union, or  
providing it with a copy of the proposed policy prior to effecting it. In addition, and  
despite Ms. Randazzo alerting the Employer to its Art. 18.4 and 18.5 obligations on  
August 26th, the Employer went ahead and distributed it to employees in their  
workplaces before discussing the policy with the Union.  
85. It also maintains that having a discussion with the Union about the policy after  
the grievance had been filed does not meet the collective agreement obligation, and  
in any event, discussions at the Step 2 grievance meeting are privileged and the  
22  
Employer cannot rely on them. As such, the Union asks that the Employer be found  
to have breached Art. 18.4 of the collective agreement.  
86. With respect to Art. 18.5, the Union asserts this is a unique clause, which has  
long been in the collective agreement, and in fact pre-dates HOPE becoming the  
bargaining agent. According to the Union, the provision was awarded by Arbitrator  
Randall in an interest arbitration for the first collective agreement that HOPE  
reached with this Employer, but HOPE was displacing another union that had  
previously represented this bargaining unit.  
87. The Union argues that the employees covered by this collective agreement had  
the existing right to security of their own person when it came to vaccines or taking  
medications, and they were able to make those decisions without being subject to  
the threat of discipline. In this instance, according to the Union, this was not a  
theoretical position, as both the immediately earlier June 2021 COVID-19  
Vaccination Policy indicates this, but the earlier vaccination policy, which had been  
in place since at least 2012 for other vaccinations, including the annual influenza  
vaccine, permitted employees to decline to take the flu vaccine, and to also decline  
to take the Tamiflu medication, and remain off work on an unpaid leave of absence if  
there was an officially declared flu outbreak in a home. According to the Union, at  
no point ever has the Employer hinted or suggested to an unvaccinated employee  
that they may be disciplined in any way, or terminated from employment. As such,  
the Union argues the current policy is a sharp contrast to what had been the  
prevailing right, privilege, practice and working condition of the employees.  
Therefore, this Employer had to work within its obligation under Art. 18.5 if it  
wanted to change those prevailing rights, privileges, practices and working  
conditions.  
88. Returning to the example of how the Employer has treated the mandatory  
requirement of continuing education, the Union reiterated that discipline was never  
the penalty for non-compliance. Rather, the consequence was that an employee  
would not be scheduled until they met the continuing education requirement.  
Anticipating that the Employer may argue that it had never said that it would NOT  
discipline employees for non-compliance, the Union asserts that in the context of  
Art. 18.5, “silence is golden”, as that is the long-established practice in these  
workplaces.  
89. The Union therefore argues that had the Employer wanted to change its practice  
regarding mandatory requirements, which was more beneficial to the bargaining  
unit employees than a disciplinary response, it had to reach a mutual agreement  
with the Union as to what the new policy should be as regards the consequences of  
non-compliance. Since it failed to do so, the Union asserts that the disciplinary  
component of the September 2021 Vaccination Policy should be declared  
inoperative as it is in violation of the collective agreement.  
EMPLOYER SUBMISSIONS  
23  
90. In addition to various excerpts from the OHSA, the LTCHA and its General  
Regulation, the Employer relied on the following jurisprudence in support of its  
arguments: United Food and Commercial Workers Union, Canada, Local 333 and  
Paragon Protection Ltd. (COVID-19 Vaccination Policy Grievance), (Unreported  
decision of F.R. Von Veh, Nov. 9, 2021); Electrical Safety Authority and Power  
Workers’ Union, Grievance re COVID-19 Vaccination Policy, (Unreported decision  
dated November 11, 2021, J. Stout); Electrical Safety Authority and Power Workers’  
Union, Grievance re COVID-19 Vaccination Policy, 2022 343 (ON LA) (J.  
Stout)(the “January 2022 ESA decision”); Ontario Power Generation and Power  
Workers’ Union, Re OPG-P-185, (Unreported decision dated November 12, 2021, J. C.  
Murray); Union des Employes et Employeres de Service, Section Locale 800 et Les  
Services Menagers Roy Ltee. Et al. (Unreported decision dated November 15, 2021, D.  
Nadeau)(NOTE: As this lengthy decision is in French, I was unable to read it);  
Corporation of the County of Simcoe Paramedic Services and Ontario Public Service  
Employees Union, Local 303 (J. Wright), 2008 66623 (ON LA) (P. Knopf);  
Canadian Labour Arbitration, 5th Edition, Brown & Beatty, Chapters 7:3610 - Refusal  
to follow instructions; 7:3612 - Essential ingredients; 4250915 Canada Inc. o/a Multi  
Luminaire and Peter Valliere, (Unreported decision dated September 28, 2021, C.  
Watson, Employment Standards Officer of the Ministry of Labour, Training and  
Skills Development under the Employment Standards Act, 2000, regarding claim for  
Termination Pay and Reprisal); Amalgamated Transit Union, Local 113 et al v.  
Toronto Transit Commission and National Organized Workers Union v. Sinai Health  
System, 2021 ONSC 7658 (Ont. Sup. Court of Justice); Canada Post Corporation and  
Canadian Union of Postal Workers, (Unreported decision dated November 30, 2021,  
K. Burkett); Bunge Hamilton Canada and United Food and Commercial Workers  
Canada, Local 175, (Mandatory Vaccine Policy), 2022 43 (ON LA) (R. J.  
Herman); Teamsters Local Union 847 and Maple Leaf Sports and Entertainment (S.  
Wideman), 2022 544 (ON LA) (N. Jesin); Communications, Energy and  
Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, 2013 SCC 34  
(), [2013] 2 S.C.R. 458; Meridian Automotive Systems v. CAW Canada (Richards  
Grievance), [2005] O.L.A.A. No. 517, 144 L.A.C. (4th) 91 (R.J. Roberts); Toronto (City)  
v. Canadian Union of Public Employees, Local 79 (Portillo Grievance), [2011] O.L.A.A.  
No. 167, 206 L.A.C. (4th) 253 (D. Randall); Toronto East General Hospital and S.E.I.U.  
Local 1, ON, [2004] O.L.A.A. No. 945, 131 L.A.C. (4th) 220 (F. M. Reilly); Oshawa  
General Hospital and Nurses’ Association Oshawa General Hospital, [1975] O.L.A.A.  
No. 16, 10 L.A.C. (2d) 201 (H. D. Brown); Greater Toronto Airports Authority v. Public  
Service Alliance of Canada (Cencic Grievance), [2001] C.L.A.D. No. 12 (P. Knopf);  
International Association of Machinists and Aerospace Workers, Transportation  
District 140, Local Lodge 2413 v. ASIG Ground Handling Canada Ltd. (McCanna  
Grievance), [2017] C.L.A.D. No. 62, 2017 CarswellNat 2744 (S. Baxter); Participating  
Nursing Homes and ONA (Covid-19 Sick Pay), 2020 CarswellOnt 15021 (J. Stout);  
Sensenbrenner Hospital, Kapuskasing v. Service Employees International Union, Local  
204 (Mercier Grievance), [2002] O.L.A.A. No. 602, 115 L.A.C. (4th) 434 (G. Brent);  
Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004  
(Kosta Grievance), [2004] C.L.A.D. No. 524, 135 L.A.C. (4th) 179 (G. Brent); Toronto  
24  
Community Housing Corp. v. Ontario Public Service Employees Union (Security Checks  
Grievance), [2012] O.L.A.A. No. 587, 227 L.A.C. (4th) 50 (S. Tacon); Innisfil (Township)  
v. Communications, Energy and Paperworkers Union of Canada, Local 333-16 (J.T.  
Grievance), [1997] O.L.A.A. No. 1052 (R. L. Levinson);  
91. The Employer began its submissions by outlining in detail what it wants me to  
do should I find in its favour. By way of remedy, the Employer seeks dismissal of the  
grievance, as well as the following:  
- Express notation that the Union is not challenging the constitutionality of the  
Minister’s Directives and revised Directives;  
- Confirmation that the Policy constitutes a reasonable workplace rule;  
- Confirmation that the unpaid administrative leaves of absence were an  
appropriate just cause consequence of employees refusing to comply with  
the reasonable workplace rule in the Policy;  
- Confirmation that the terminations were appropriate just cause  
consequences of the employees refusing to comply with the reasonable  
workplace rule in the Policy;  
- Confirmation that Article 18.5 of the collective agreement has not been  
violated as alleged, and does not bar the Employer from implementing the  
Policy without first negotiating the Policy and securing the Union’s  
agreement; and,  
- Confirmation that Article 18.4 of the collective agreement has not been  
violated as alleged and that it does not render the Policy ineffective.  
92. As outlined in the facts above, since the first day of hearing on November 19,  
2021, the Employer has terminated the employment of fourteen bargaining unit  
employees for just cause, based on their failure to comply with the September 2021  
Mandatory Vaccination Policy. Having heard the Employer’s comprehensive list of  
remedies sought, and since the termination grievances, if any, are not before me, I  
had queried whether the parties were agreeing that I could rule on whether the  
individual terminations were for just cause.  
93. While conceding that I am only seized of the policy grievance, the Employer  
advised that it was looking for a “generic just cause” ruling, to provide guidance to  
the parties on the issue of termination. It seeks a ruling on the “broad based  
application of the Policy to the fourteen individuals”.  
94. The Union reiterated that its argument is that the termination aspect of the  
Policy is unreasonable, and that the implementation of the Policy in light of Articles  
18.4 and 18.5 is a violation of the collective agreement. It does not agree with the  
Employer’s position that in a policy grievance the arbitrator should go beyond the  
four corners of the grievance. If the Policy is found to be reasonable, the Union will  
have to address how the Employer enforced the policy in respect of each dismissed  
individual, based on their specific situation.  
25  
95. The Employer argues that the Policy does not mandate termination: it indicates  
that “Employees who fail to comply with this Policy will be placed on an unpaid  
administrative leave or may have their employment terminated”. As such, unlike the  
mandated consequence of being placed on an unpaid administrative leave for non-  
compliance, it is only an option open to the Employer to terminate employment of a  
non-compliant employee.  
96. In this case, the Employer points out that the Union has agreed that the unpaid  
administrative leave aspect of the Policy is not in issue in this grievance. Since it is  
only the termination aspect of Policy that is in question, the Employer relies on  
Arbitrator Herman’s decision in Bunge Hamilton, cited above, for the proposition  
that termination may be an aspect of the application of a mandatory vaccination  
policy.  
97. The Employer disagrees with the Union’s argument, which it characterizes as  
being that even if the Policy is found to be reasonable on the KVP rules, once  
employees have decided that they will not comply with those rules, there must be a  
balancing of their interests with those of the Employer, and that alternatives must  
be considered to help such employees avoid the consequences of their decision not  
to comply with a reasonable workplace policy. This, the Employer argues, is an  
unacceptable extension of the balancing aspect of KVP in respect of a policy itself, to  
an assessment of the just cause consequences of not complying with the policy or  
rule.  
98. The Employer’s first argument is premised on the fundamental legal principle  
that an employer has just cause to terminate an employee if the employee does not  
comply with reasonable workplace rules; where that non-compliance is sustained;  
and when it strikes at the inherent foundation of the employment. It states that in  
the jurisprudence there are the concepts of culpable non-compliance and non-  
culpable non-compliance with a rule. In this instance, the Employer argues that an  
employee who refuses to comply with the mandatory vaccination policy is engaging  
in culpable non-compliance, which amounts to misconduct, and can result in  
termination of employment as the negative consequence of that misconduct.  
99. Essentially, the Employer argues that it is a basic contractual requirement of  
employment that employees must comply with an employer’s reasonable workplace  
rules, and points to the Bunge Hamilton and Irving Pulp and Paper decisions, cited  
above. Failure to comply is a breach of the terms of employment, and that is just  
cause for whatever may be the negative consequences. Culpable non-compliance  
addresses a refusal to follow rules, and in such situations, except for Human Rights  
Code issues which may be applicable, there is no requirement for a balancing of the  
interests of the employee and the employer. According to the Employer, the caselaw  
supports a finding that if an employee does not comply with a rule, they must bear  
the consequences of breaching the rule. Having a strongly held belief, according to  
the Employer, is not an acceptable excuse, as was found in the County of Simcoe  
26  
decision, cited above. In any case, in the situation here, the Employer states there is  
no issue raised about a religious or medical exemption.  
100. The Employer states that the second aspect of this argument is to establish  
why termination is an appropriate consequence for non-compliance with the Policy  
in the LTC home setting and in respect of COVID-19, in light of both the health and  
safety aspects as well as the quality of life of residents of these homes. According to  
the Employer, maintaining both the health and safety and the quality of life of  
residents were fundamental aspects of the employment relationship even before  
COVID. The Employer states that if an individual agrees to work in a LTC home, they  
accept the values and premise of working in this environment. The requirements  
are that an employee show up and provide care to residents, and that they ensure  
the well-being, safety, and quality of life factors for these frail, dependent,  
vulnerable elderly people in their home. As the Employer put it, the residents are  
the customers, and employees are coming and working in their home.  
101. As well, it argues that being vaccinated is inherent to LTC employment, so that  
if an unvaccinated employee decides not to comply with a reasonable workplace  
rule that is fundamental to their employment, that should be just cause for  
termination under the Policy. In light of the current Minister’s Directive that LTC  
employees get a third vaccination, it is clear that this requirement is not about to go  
away soon. The Employer is particularly concerned with the need for deterrence  
through a decision in this case since the deadlines for third doses of the vaccine are  
imminent, and it claims there are employees who are awaiting issuance of this  
decision as they are thinking about whether they have to get the booster.  
102. The Employer argues that the sequence of events in this case shows what has  
led to the decision to terminate the employment of those who are non-compliant  
with a policy that the Employer maintains is reasonable. It states that there had  
been months of education regarding the vaccines and their safety; there was a  
counselling session with each unvaccinated employee; there was fair warning given  
of the need to get vaccinated or be put on an unpaid administrative leave of absence;  
there were forewarnings about termination being the next step, and then finally the  
terminations were conducted. It argues that it behaved reasonably by providing  
employees with fair warning of the consequences of non-compliance at each stage,  
and that employees had sufficient warning that termination would be the final  
outcome after all the other steps had been taken. While this particular mandatory  
vaccination situation is not conducive to actual progressive discipline, it had met its  
obligation of providing ample warning of the consequences of continuing non-  
compliance with the Policy. The Employer states it does not have to wait for each  
employee’s “road to Damascus moment”.  
103. It posits that another aspect of this argument is that just cause is the  
appropriate potential response to non-compliance in light of the terrible impacts for  
LTC residents due to COVID-19, and since those impacts are long term, prolonged  
and indefinite.  
27  
104. In what the Employer describes as a culpable non-compliance situation, like  
this one, there is no balancing of interests. However, if I find there is a non-culpable  
aspect to the non-compliance, then it argues that in any event, the interests of the  
Employer, the residents, and the other vaccinated workers outweighs the interests  
of those who will not get vaccinated.  
105. In order to distinguish the culpable non-compliance situations from those that  
are non-culpable non-compliance cases, the Employer relied on a lot of  
jurisprudence. In some of the cases, the Employer pointed out that an employee  
was unable to comply with a rule for non-culpable reasons, such as having travelled  
and finding that they had to isolate on return even though they were not sick; or  
inability to pass an exam where certification was a requirement; or inability to get  
security clearance, which was a requirement of the job, etc. In some of the cases, the  
Employer noted that while the employee was essentially found to be in the non-  
culpable and non-compliant category, it was because the employee was in the  
situation as a result of something happening in their lives outside of work. In such  
cases, arbitrators have required employers to look for reasonable alternatives,  
where possible. The Employer argues that is not the situation in this case as these  
employees were aware of the requirement to be vaccinated, and were simply  
refusing to comply with the Policy in that regard. As such, the Employer argues the  
situation here is of culpable non-compliance with a policy, for which there is no  
requirement to balance interests or look for alternatives to save the employee from  
the consequences of their conduct.  
106. As an example of why this is not a situation in which the Employer had to  
consider alternatives in its Policy, the Employer pointed to an example to make the  
point. It stated that if the rule was that an employee had to wear a mask at work,  
and an employee felt strongly that they should not have to wear a mask, once the  
rule was established as being reasonable, the failure to comply would be  
characterized as misconduct, subject to discipline, and if the refusal continued, it  
would be just cause for termination. According to the Employer, there is nothing  
special about the vaccination issue, especially where, as here, there are Minister’s  
Directives requiring that LTC employees be fully vaccinated in order to come to the  
workplace.  
107. In the event that I think that there should be a balancing of interests and that  
the Employer should have to find some alternatives, the Employer points out that  
there are no alternative positions as every bargaining unit position in the LTC home  
requires that the employee be vaccinated.  
108. Contrary to the Union’s argument that no one knows what will happen in 18  
months, and that leaves of absence for up to 24 months should be a reasonable  
alternative, the Employer argues that the current situation is and has been  
prolonged, and appears to be indefinite, as we are now close to two years into the  
COVID pandemic, and the Minister’s Directives are escalating, not diminishing  
28  
requirements for the vaccination of LTC staff. Furthermore, the Minister’s  
Directives, made pursuant to the LTCHA, are not part of the Emergency Management  
and Civil Protection Act, and are not tied to emergency orders, so are not tied to the  
duration of the pandemic emergency. According to the Employer, vaccinations are  
only one part of the layering of measures to limit negative health outcomes and  
hospitalizations, and that without the layer of vaccination, other layers are not as  
effective. As an example of another layer, the Employer points to the use of PPE, as a  
layer on top of being vaccinated. On the specific layer of vaccination, the Employer  
also asserts that if an employee does not have the two vaccinations that are already  
required, it is not possible to layer on the third booster, or the fourth that is likely to  
be required as residents are already at the fourth vaccination at this juncture.  
109. The Employer argues it should not have to wait for “Paul on the road to  
Damascus” moments for those who have had months to consider their vaccination  
situation while on unpaid leaves of absence already.  
110. The Employer responded to the Union’s position that the Employer suffered no  
losses as a result of having put the non-compliant employees on unpaid leaves of  
absence in October and terminating them in December, when they would no longer  
have been eligible to accrue seniority or enjoy paid benefits coverage. According to  
the Employer, while that timing worked out at that time, because the Employer  
wanted to give all employees time to understand the new Policy, and to get  
vaccinations in time, that will not be the situation going forward. In particular, it  
points out that the deadline for having received third vaccinations is approaching  
and it should not be required to give non-compliant employees two month leaves of  
absence again now that the Policy has been in place for some time.  
111. In the Employer’s view it is prejudicial to those employees who comply with  
the Policy, and continue to work, to have those not working accumulating seniority,  
as despite working, they get no seniority advantage. In response to the Union’s  
position that the non-compliant employees should be allowed to maintain their  
seniority on indefinite leaves of absence, the Employer points out that while those  
employees would be off, they would still retain ownership of their respective  
positions in the bargaining unit, their posting entitlements, and their scheduling  
line. They would have the right to apply for and get a position for which they would  
have more seniority than someone who would be back-filling at work for them  
while they are off. As an example, if a day shift job got posted, a senior non-  
compliant employee on a leave of absence would be able to bid and get the job.  
While these are rights that accrue to employees pursuant to the collective  
agreement, the Employer points out that to those who have complied with the  
policy, and are working, it would appear that the non-compliant workers were being  
rewarded for bad behaviour.  
112. According to the Employer, it is short-staffed, but there would have to be  
people back-filling for the non-compliant workers. Those individuals would have to  
decide whether to take a non-compliant worker’s position as they would be taking a  
29  
risk that the person could decide to come back at any time. Since many LTC home  
workers have more than one job, taking a temporary back filling full time position at  
one of these homes and giving up their other part time job would be risky. The  
Employer characterizes these as recruitment and retention issues. If the non-  
compliant worker is dismissed, their job can be posted as a permanent full time job,  
which makes it much more attractive to potential applicants.  
113. The Employer also stated that there are morale issues involved for those who  
have complied and keep working through the pandemic and outbreaks. They see  
that they are working, while those on leaves of absence are not working through  
what is generally the longer outbreak season of the winter, and that the non-  
compliant workers would be able to preserve their rights until the outbreaks are  
over and then return.  
114. On the issue of why termination is appropriate in this Policy, the Employer  
points out that the very least I must decide whether termination is an appropriate  
response subject to the requirement that it be for just cause. It argues that in this  
case, where the residents are the customers, and one of the requirements of  
working in their home is that an employee be vaccinated, but that employee says  
their preference is not to be vaccinated, then following education, counselling,  
warning, being put on an unpaid leave of absence, being warned about termination,  
and then finally being terminated, that termination is a reasonable response at that  
point.  
115. In response to the Union’s assertion that the Minister’s Directive did not  
specify that failure to get vaccinated would lead to termination of employment, the  
Employer agrees that is true, but states that the Directive did not say that employees  
could or must not be terminated. The Employer points out that the government  
knows how to address that issue, as it did when it passed a regulation that LTC  
home workers could only work at one site early in the pandemic. The regulation  
expressly protected the employment of workers so that once they had made their  
primary selection of where they would work, their employment status was  
protected at their second site.  
116. The Employer argues that the fundamental nature of LTC employment  
includes the Residents’ Bill of Rights, which references these homes as the residents’  
homes. According to the Employer, optimizing the quality of life of residents is the  
core of the work. Part of that, even pre-COVID, was the requirement in s.  
229(10)(5) of the General Regulation under the LTCHA (O. Reg. 79/10) requiring  
that a LTC home licensee ensure that it has a staff immunization program in  
accordance with evidence-based practices, and if there are none, then in accordance  
with prevailing practices. In the current environment, the Employer argues that it is  
part of evidence-based practices to require COVID-19 vaccination.  
117. In response to the Union’s argument that the prevailing practice through the  
Immunization Program had been that if an employee did not get the flu vaccine, and  
30  
there was an outbreak in a home, they would not be scheduled until the outbreak  
was declared over, the Employer points out that those outbreaks may have been for  
two weeks. It argues that the COVID-19 pandemic is fundamentally different from  
the flu, and in the developing context of the variants, including Omicron, this is not a  
short lived transient situation, but has already gone on for two years. The Employer  
again points out that the Minister’s Directives are not time limited, which suggests  
that the vaccination requirements may be in place for LTC homes indefinitely.  
118. Relying on the requirements of the Occupation Health and Safety Act (“OHSA”),  
the Employer argues that just as it has an obligation to take every reasonable  
precaution reasonable in the circumstances to protect the health and safety of its  
employees (s. 25(2)(h)), so too do employees have an obligation to work in  
compliance with the provisions of the Act (s. 28(1)(a), which includes the  
precautions the Employer takes to protect their health and safety.  
119. The Employer also relied on the Preamble of the LTCHA, which states that the  
people of Ontario and the government “believe in resident-centred care”; “affirm our  
commitment to preserving and promoting quality accommodation that provides a  
safe, comfortable, home-like environment and supports a high quality of life for all  
residents of long-term care homes”. At Part 1 of the Act, the Employer notes that it  
states:  
Home: the fundamental principle  
1. The fundamental principle to be applied in the interpretation of this Act and  
anything required or permitted under this At is that a long-term care home is  
primarily the home of its residents and is to be operated so that it is a place  
where they may live with dignity and security, safety and comfort and have their  
physical, psychological, social, spiritual and cultural needs adequately met.  
120. Referring to the Residents’ Bill of Rights, which is in Part Two of the Act, at s.  
3(1), the Employer drew particular attention to #18, which states that “every  
resident has the right to form friendships and relationships and to participate in the  
life of the long-term care home”. In this regard, it argues that if a LTC home worker  
makes personal decisions that cause them to be away from work longer, or cause  
staff shortages, because they don’t want to get vaccinated, that has an impact on the  
residents’ quality of life as well as on other employees.  
121. The Employer relies on the Purpose clause of the collective agreement to  
suggest that the parties themselves have stated that the intention is to secure the  
best possible care and health protection for residents (Art. 1.1). In its view, that  
must include vaccinations where they are necessary and mandated. They have also  
recognized that “the attitude, ability and efficiency of all employees affect to a large  
extent the care, welfare, safety and comfort of the residents of the Home” (Art. 1.3).  
122. Article 7.9 addresses Infection Prevention and Control. The Employer points  
to the section of the Article that states “it is understood that each employee is  
31  
responsible for following prescribed policies and procedure and recommendations  
of the Employer related to the above”, which includes how to deal with residents  
who may have serious infectious diseases, the requirement to practice universal  
precautions; and high risk areas where employees are exposed to infectious or  
communicable diseases for which there are procedures, etc.  
123. The Employer also relies on Art. 10.10, which addresses the loss of seniority.  
In this regard, the Employer notes that if an employee, without satisfactory reason,  
refuses to continue to work, or return to work during an emergency which seriously  
affects the Employer’s ability to provide adequate patient care, they lose all service  
and seniority, and their employment will be deemed terminated (Art. 10.10(d)).  
As well, if an employee is absent and, without reasonable excuse, fails to return to  
work upon the termination of an authorized leave of absence, they lose all service  
and seniority, and their employment will be deemed terminated (Art. 10.10(f)).  
124. Finally, in respect of the collective agreement, the Employer relied on a Letter  
of Understanding addressing “Infection Prevention Control”, which states that  
infection control is a standing agenda item on all Labour Management, Occupational  
Health and Safety Committee meetings.  
125. The Employer asserts that having fewer staff available for sick residents  
during outbreaks causes higher work demands on those who are at work as there is  
tray service to rooms, deep cleaning required, less family caregivers around to help,  
staff have to work overtime, including double shifts, and there are more sick calls  
from workers. It is therefore physically, mentally and emotionally exhausting for  
staff, so that by not being vaccinated and not attending at work, those unvaccinated  
employees are contributing to the shortage of staff in their respective homes. The  
Employer argues that these individuals agreed to work in the LTC home  
environment; yet they are now saying they don’t want to get vaccinated. While the  
Employer is not suggesting that they should be forced to get vaccinated, there are  
significant negative consequences of those employees’ decisions on their co-  
workers and the residents, and ultimately there must be consequences for those  
employees’ exercise of their choices.  
126. Relying on the COVID-19 impacts statistics provided, the Employer points out  
that there have been outbreaks in the homes, and there are again such outbreaks. It  
argues there is good medical research evidence that the booster third vaccination is  
helpful, even for breakthrough cases of COVID infection. Vaccination helps to limit  
the chance of hospitalization or an infected person ending up in an Intensive Care  
Unit. Deaths among the elderly have been vastly reduced through the vaccination  
programs, but the Employer points out that there are still quality of life issues for  
residents when there are outbreaks and they are locked down in their rooms.  
127. With respect to the Union’s reliance on Art. 18.5, the Employer argues there  
has been no violation of this provision of the collective agreement, as what the  
Union is seeking is an effective veto on any exercise of the Employer’s management  
32  
rights, which are specific rights it has under the collective agreement. According to  
the Employer, the Union is claiming that this article gives them a veto over the  
employer making any changes to reasonable workplace rules, even if the Employer  
has statutory obligations under the OHSA and the LTCHA.  
128. While the Employer accepts that it is a provision commonly found in first  
collective agreements in order to ensure that if the parties forgot to bargain about  
something that had been a right or privilege or benefit in their first round of  
negotiations, it is not lost, it argues that it was not meant to be a veto on  
management rights or on emerging environmental issues.  
129. The Employer points out that the Policy is not inconsistent with the terms of  
the collective agreement because Art. 3 gives the Employer exclusive management  
rights to establish standards and procedures, and to make, alter and enforce rules to  
be observed by employees, so long as it does so in a fair manner. It argues that it  
would take the clearest of language, and a more explicit and express provision, to  
restrict management rights on fundamental issues. Otherwise, the Employer asks  
what would be the point of having the Management Rights provision of the  
collective agreement if it had to negotiate every exercise of management rights to  
make or change a reasonable workplace rule.  
130. In any event, the Employer argues that Art. 18.5 applies to a more beneficial  
existing right, privilege, benefit, practice or working condition. In the circumstances  
of this case, getting the COVID-19 vaccination is more beneficial than any aspect of  
the collective agreement.  
131. The Employer argues that if Art. 18.5 means what the Union asserts, then what  
would be the point of having Art. 18.4, which requires the Employer, before effecting  
any significant changes in rules or policies that affect employees, to discuss the  
changes with the Union and to provide it with copies.  
132. The Policy, according to the Employer, is a manifestation of its obligations  
under the OHSA and the LTCHA, which are legislated requirements which it cannot  
contract out of by saying that it is subject to the agreement of the Union. Similarly,  
the Employer asks rhetorically whether the Union position based on Arts. 18.4 or  
18.5 could reasonably be believed to stand in the way of implementation of the  
Minister’s Directive regarding mandatory COVID-19 vaccination.  
133. The Employer relies on past practice to assert that it has not in the past  
negotiated every rule change with the Union. In the most recent past, it had not  
negotiated with the Union about the June 2021 Vaccination Policy, and in fact at no  
time had the Union indicated that was required.  
134. With respect to the Union’s reliance to Art. 18.4, the Employer argues that this  
provision is simply designed to give the Union notice of a significant rule or policy  
change, to discuss the changes with the Union, and to provide it with a copy before  
33  
“effecting” such changes. The provision does not speak to proposed changes, but  
rather ones that the Employer has already determined are required.  
135. On a plain reading of Art. 18.4, the Employer argues that it is also not a  
consultative provision. Relying on the past practice just two months earlier, the  
Employer notes that the Union did not claim any breach of Art. 18.4 when it was  
provided with a copy of the June 2021 Vaccination Policy, it simply thanked the  
sender. In any event, the Employer maintains that the requirement is to discuss  
with the Union and provide it with a copy, before the employer “effects” any  
significant change. On the facts of this case, the Employer maintains it sent the  
Union the September 2021 Mandatory Vaccination Policy before the Policy was put  
in effect, which it claims occurred on October 12, 2021. The Employer also asserts  
that there were written discussions about the new policy following the August 24,  
2021 press release.  
136. According to the Employer, it could not have told the Union about the  
impending policy before August 24, 2021 as it was working with the other LTC  
home providers and they had to announce the mandatory vaccination policy  
together. Furthermore, the Employer asserts at that time they all said that the  
mandatory vaccination policy would take effect on October 12, 2021. For its part,  
Chartwell sent the Union the Policy on the Monday after the Friday press release;  
indicated it valued the Union’s role; and advised the Union that the Employer would  
be rolling out the policy to employees over the course of that week.  
137. The Employer asserts that since the Union filed its grievance in early  
September, it did not try to set up a meeting with the Union to discuss the Policy as  
it knew that they would be meeting in the course of the grievance process. While  
not relying on the actual discussions the parties had at the Step 2 grievance meeting,  
the Employer asserts they did discuss the Policy at that time, and the Union made its  
views known.  
138. The Employer also relies on the fact that in Mr. Pielas’ communication to Ms.  
Randazzo on October 14, 2021, he told her about the decision to advise employees  
on administrative leaves of absence for non-compliance with the mandatory  
vaccination policy that they would be terminated from employment in December.  
He offered to meet to discuss this with her. According to the Employer, the Union  
did not take Mr. Pielas up on his offer, but instead asked for the Employer’s Step 2  
response and indicated it would be proceeding to arbitration. The Employer  
maintains that it was not for a lack of trying on its part that there was no discussion  
about the Policy.  
139. The Employer asks that the grievance be dismissed. However, even if it is  
found that the Employer breached Art. 18.4, the Employer argues that the result  
should be a declaration and a directive that the Employer comply with the provision  
in the future.  
34  
UNION REPLY SUBMISSIONS  
140. The Union states in reply that most of what the Employer argued is irrelevant  
to the context of this Employer, this Union, and this grievance. It argues that context  
is everything, and that the arguments should be refocused on the provisions of the  
collective agreement, in particular Articles 18.4 and 18.5. It states that the Union  
did not accept that the Policy was reasonable, and from the time it was advised of  
the new policy, it has opposed it. In particular, it took issue with the disciplinary  
aspect of the Policy. In practice, the Union asserts that all the evidence shows that  
discharge is a pillar of the Policy, and that the Employer had no intention of, nor did  
it consider what was appropriate in each individual case of an employee who was  
ultimately discharged. As such, the Union maintains that the Policy in this regard is  
unreasonable.  
141. The Union clarified that it is not seeking to have me exceed my jurisdiction. It  
is simply asserting that whatever the core principles of a contract of employment  
may be, they cannot override what parties have negotiated or been awarded in their  
collective agreement. In light of Arts. 18.4 and 18.5, the bargaining unit employees  
had rights. While there had always been consequences for failure to comply with a  
policy, no policy prior to the September 2021 Mandatory Vaccination Policy had  
ever indicated that failure to adhere to the policy could lead to the disciplinary  
penalty of loss of employment.  
142. The Union asserts that the Employer’s submissions about all the negative  
consequences that flow from employees not getting vaccinated and being off work  
apply equally in principle, to the impact of flu outbreaks, yet the Employer had  
never put in place as draconian a policy regarding flu vaccinations.  
143. While the Union agrees that care for residents and concern for fulfilling their  
needs should be at the center of the relationship, it takes offence at the Employer’s  
suggestion that the non-compliant employees are shirking their work during the  
outbreak season and would just come back to work when COVID-19 disappears. It  
points out that the 14 who were discharged were long term employees, who had  
spent over a year and a half working in the worst COVID-19 conditions in these  
homes, putting their own health and safety at risk. Furthermore, the Union pointed  
out that vaccines had been available for health care workers from about February  
2021 on, but the Employer had no trouble with them coming to work unvaccinated  
until suddenly in late August 2021 it changed its mind. According to the Union, the  
Employer has not explained what changed at that juncture to make it so vital that  
employees get vaccinated.  
144. The Union is not disputing that the Employer can have reasonable rules and  
policies and that discipline may be a consequence for breach of such policies.  
However, it argues that there is something quite different about a policy regarding  
COVID-19 vaccination, as that entails the security of the person, and what one is  
35  
willing to put into one’s own body. It relies on Arbitrator Stout’s November 2021  
ESA decision, cited above.  
145. In addressing the Employer argument that it has management rights to  
discipline an employee for willfully or culpably refusing to comply with a policy, the  
Union states that while it has that management right, it is also required under Art.  
18.5 to preserve employees’ beneficial working conditions. Since the working  
conditions at these homes included a vaccination policy that did not resort to  
discipline for non-compliance, but rather mandated being put on an administrative  
leave of absence without pay, the Employer’s management rights to change that  
privilege, practice or working condition are restricted.  
146. Contrary to the Employer argument that the Union is seeking a veto on the  
Employer right to promulgate new rules or policies, the Union asserts it is not  
saying that the Employer cannot change the rules: it is saying that based on Art.  
18.5, the Employer must come to the Union and the parties can negotiate about the  
changes that the Employer is seeking, as it did regarding the return to second  
workplace protocols following the government’s mandate that health care workers  
could only work in one facility earlier in the pandemic. None of the jurisprudence  
that the Employer relied on had a provision like Art. 18.5.  
147. The Union asserts that the Employer was dismissive of Art. 18.4 in its  
submissions. However, the Union maintains that the Employer has obligations  
under that provision to provide a copy to the Union, and to discuss significant  
changes in policy with the Union in advance, which it did not do in this instance.  
The Employer never discussed the policy with the Union even after it had  
announced it, and sent the Union a copy. Discussions after the filing of the grievance  
do not meet the obligation. The Union argues that in light of Art. 18.5, it was  
particularly relevant that a discussion should have occurred as the significant  
change in the policy concerned existing rights, privileges and working conditions.  
148. With respect to the Employer’s reliance on the Union’s acceptance of the June  
2021 Vaccination Policy as indicative of past practice, the Union argues there is  
insufficient evidence before me to conclude on the basis of one example that there is  
a meaningful past practice. In any event, the June 2021 Vaccination Policy did not  
impose significant changes as people could continue to work even if not vaccinated,  
and they were not subject to discharge, so the Union did not feel that there was a  
breach of Art. 18.5.  
ANALYSIS AND DECISION  
149. In reaching a decision I have reviewed the parties’ extensive submissions, all  
the documents tendered, and the jurisprudence relied upon.  
150. I begin by observing that while a number of mandatory COVID-19 vaccination  
decisions have addressed various workplace settings, none that was brought to my  
36  
attention involved the long-term care home sector, or the health care sector in  
general. While those working in hospitals, and especially in Intensive Care and  
COVID units, have borne an inordinate burden, it is the residents and staff in LTC  
homes who have suffered more in this pandemic than perhaps anywhere else.  
151. It is common knowledge that since the beginning of the pandemic two years  
ago the residents of long-term care homes have suffered extreme illness; a high  
mortality rate before vaccines became available; lengthy lockdowns in which  
residents were unable to see their family and friends; many died without being able  
to see their family members; in some homes due to staff shortages, they lived under  
terrible conditions regarding their personal needs; they lost the ability to even see  
their friends within their LTC home; there were no or limited recreational options  
when they were confined to their rooms; and much more.  
152. There is no doubt that access to COVID-19 vaccinations has led to major  
improvements in the health and quality of life of all Canadians, but most particularly  
for those living in congregant settings, and especially for frail elderly persons living  
in LTC homes. The Ontario government recognized the need to achieve higher  
immunization rates among all those persons working, doing a student placement, or  
volunteering in LTC homes through its October 1, 2021 Minister’s Directive  
regarding mandatory vaccination. The objectives of that Directive were described  
as follows:  
Achieving high immunization rates in Ontario’s long-term care homes through  
vaccination is part of a range of measures and actions that can help prevent and  
limit the spread of COVID-19 in homes. Vaccination against COVID-19 helps reduce  
the number of new cases, and, most importantly, severe outcomes including  
hospitalizations and death due to COVID-19 in both residents and others who may  
be present in a long-term care home.  
The objectives of this Directive are to:  
- set out a provincially consistent approach to COVID-19 vaccination requirements  
in long-term care homes;  
- maximize COVID-19 immunization rates in long-term care homes;  
- ensure that individuals have access to information about COVID-19 vaccination;  
and,  
- increase accountability and transparency through public reporting of  
immunization rates in long-term care homes.  
153. It is also worth noting what the Chief Medical Officer of Health for Ontario, Dr.  
Kieran Moore, stated when revising the “COVID-19 Directive #3 for Long-Term Care  
Homes under the Long-Term Care Homes Act, 2007” on December 17, 2021. In that  
version of the Directive Dr. Moore was updating the required Infection and  
Prevention Control (IPAC) practices for LTC homes and retirement homes. One of  
the reasons for the Directive was stated as follows:  
37  
AND HAVING REGARD TO residents in long-term care homes and retirement homes  
being older, and more medically complex than the general population, and therefore  
being more susceptible to infection from COVID-19;  
154. The goal of the Directive was described as follows:  
NOTE: The goal of this Directive is to minimize the potential risks associated with  
the ongoing COVID-19 pandemic in Ontario in all long-term care homes (LTCHs) and  
retirement homes (RHs) while balancing mitigating measures with the need to  
protect the physical, mental, emotional, and spiritual needs of residents for their  
quality of life. …  
155. These concerns for the quality of life of people living in LTC homes are rooted  
in the reality that such homes are the places of residence for many elderly people.  
The LTCHA encapsulates these concerns in its Preamble, which states that the  
people of Ontario and their government “believe in resident-centred care” and  
“affirm our commitment to preserving and promoting quality accommodation that  
provides a safe, comfortable, home-like environment and supports a high quality of  
life for all residents of long-term care homes”. Section 1 of the Act states that the  
fundamental principle to be applied in the application of the LTCHA is that “a long-  
term care home is primarily the home of its residents and is to be operated so that it  
is a place where they may live with dignity and in security, safety and comfort and  
have their physical, psychological, social, spiritual and cultural needs adequately  
met”.  
156. This is the overall context in which this case must be decided. However, the  
context for the purposes of this grievance arbitration also includes the collective  
agreement, policies and practices that govern the relationship between this  
Employer, this Union, and the workers in the four LTC homes at the center of this  
grievance.  
157. Since this case is about a mandatory COVID-19 vaccination policy, it is also  
important to reiterate that the Union strongly supports vaccinations, and stated  
clearly and unequivocally that it would like to see all its members be fully  
vaccinated. It points out that 98% of its members in the four homes have been  
vaccinated, which should be seen as a triumph of the various efforts that have been  
made to convince these LTC home workers that they should get vaccinated.  
***  
158. Based on a review of the grievance and the parties’ submissions, there are  
three questions to be answered:  
1. Did the Employer breach Article 18.4 of the collective agreement when it  
promulgated the September 2021 Mandatory Vaccination Policy in late  
August 2021?  
38  
2. Did the Employer breach Article 18.5 of the collective agreement when it  
included in the Policy the disciplinary penalty of termination of  
employment?  
3. Is the September 2021 Mandatory Vaccination Policy reasonable,  
particularly as it relates to the consequences of non-compliance?  
Did the Employer breach Article 18.4 of the collective agreement when it  
promulgated the September 2021 Mandatory Vaccination Policy in late August  
2021?  
159. For ease of reference, Article 18.4 is reproduced again here:  
18.4 Prior to effecting any significant changes in rules or policies which affect  
employees covered by this Agreement, the Employer will discuss the changes with  
the Union and provide copies to the Union.  
160. Based on the evidence before me, as outlined below, I find that the Employer  
was effecting significant changes in its vaccination policy when in August 24, 2021 it  
announced publicly that it would be moving to a mandatory vaccination regime, and  
that effective October 12, 2021 anyone not yet vaccinated would be put on a leave of  
absence without pay or may be terminated from employment.  
161. The June 2021 Vaccination Policy, to which the Union had not objected, was  
specifically addressed to COVID-19, and was not related to the general  
Immunization Program that had been in place since at least 2012. It envisaged  
employees providing proof of COVID-19 vaccination by July 30, 2021, or written  
proof of medical exemption, or proof that the employee had completed an  
educational program. Anyone who did not provide proof of any of these three  
options would not be permitted to work until the requirements were met. Those  
who were not fully immunized were also required to wear PPE and to submit to  
COVID-19 testing prior to every shift, even after such precautions may no longer be  
mandated by health authorities.  
162. The Employer, as part of a coalition with other national senior’s living  
operators, announced through a press release issued on August 26, 2021, that “as of  
October 12, 2021, staff who are not fully vaccinated will be placed on an unpaid  
leave of absence”. It is to be remembered that at that juncture, the Ontario  
government had not mandated vaccination for LTC home workers, so the coalition  
of LTC home companies was acting on its own initiative.  
163. There is no dispute that prior to this press release being issued the Employer  
had not alerted the Union of its intention to change its June 2021 Vaccination Policy  
to one requiring mandatory COVID-19 vaccination by the October deadline, and that  
39  
the consequence of non-compliance would be an unpaid leave of absence. As is  
clear from a review of the September 2021 Chartwell Mandatory Vaccination Policy,  
the penalties for non-compliance also included the option of termination of  
employment, however that was not mentioned in the press release.  
164. While the Employer argued that it was not actually “effecting” the changes to  
the policy until October 12, 2021, that is simply not the case. As soon as it  
announced the policy in the media, it was telling the public, its employees, and the  
Union that effective that day, Chartwell workers had to either be vaccinated by  
October 12th, or they would not be able to work anymore. As well, some managers  
in homes represented by HOPE were telling bargaining unit members that day that  
effective October 12th they would be put on leaves of absence if they were not  
vaccinated by that date. The effective date of the policy change was therefore  
August 26, 2021, to the extent that the announcement appears to have been  
intended to put employees who had not yet got vaccinated, or not fully vaccinated,  
on notice that they had seven weeks to bring themselves into compliance. October  
12th was the deadline by which they had to do that or suffer the consequences.  
165. While I understand that the Employer felt it could not discuss the impending  
change with the Union before August 26th because it was working with other  
companies in the coalition, and they wanted to make a joint public announcement, it  
is noteworthy that even on August 26, 2021, after the issuance of its press release,  
the Employer did not discuss the changes with the Union and did not provide a copy  
of the new policy to the Union. Only in response to an email from the Union Vice  
President that day did anyone in Human Resources confirm that there was going to  
be a new policy, indicate that the Union would be provided with a copy the following  
week, and that the Employer looked “forward to discussions in the near future”  
(August 26, 2021 email from A. Faul, Human Resources Manager to Kim Boyle, VP of  
the HOPE).  
166. Despite the President of the Local contacting Mr. Faul back almost immediately  
on August 26th reminding him of the Employer’s collective agreement obligations to  
discuss policy changes of this magnitude prior to implementation, and offering to  
make herself available to meet or discuss the changes with the Employer, Chartwell  
did nothing that day. It was not until August 30, 2021 at 1:55 pm that Mr. Faul sent  
Ms. Boyle a copy of Chartwell’s September 2021 Mandatory Vaccination policy, and  
he advised her that it would be “communicated to staff shortly”. However, as is  
clear from Ms. Boyle’s email to Mr. Faul on August 26th, the Union was already aware  
from some of its members that managers at some homes had been communicating  
the policy to bargaining unit members as of August 26, 2021. In any event, in his  
August 30, 2021 email Mr. Faul did not make any mention of discussion with the  
Union regarding the policy prior to it being formally communicated to staff.  
167. It was not until the Union received the policy itself that it saw that the  
Employer not only intended to place non-compliant workers on an unpaid  
40  
administrative leave, but that such employees may be subject to termination from  
employment. The policy stated:  
Employees who fail to comply with this Policy will be placed on an unpaid  
administrative leave or may have their employment terminated.  
(Emphasis in original)  
168. Any discussions that may have occurred after the filing of the grievance on  
September 8, 2021 are not material to the Employer’s obligation that it “will discuss  
the changes with the Union” prior to effecting any significant changes to a policy or  
rule.  
169. For the purposes of Art. 18.4, I find that the changes in the policy were  
significant, as unlike the previous June 2021 Vaccination Policy, it was no longer  
going to be possible for an employee to remain unvaccinated, but keep working if  
they complied with the education, testing and PPE requirements. Instead, if they  
remained unvaccinated, they were going to be put on an unpaid leave of absence in  
a few weeks, or they were under the threat of termination of employment. None of  
Chartwell’s prior immunization policies had included a threat of termination of  
employment for failure to get vaccinated.  
170. Based on the evidence, I also find that the Employer failed to provide the Union  
with a copy of the new policy, and discuss the changes with the Union, prior to  
effecting the significant changes it had made to its COVID-19 vaccination policy. As  
such, I find that the Employer violated Article 18.4 of the collective agreement.  
171. In the Toronto Hospital decision, cited above, the arbitrator dealt with a  
grievance about both an employer’s process for initiating a new policy regarding  
confidentiality and about the policy itself. In that instance the language of the  
collective agreement regarding the introduction of a new policy was very similar to  
what is before me in this case at Art. 18.4, with the only difference being that in the  
language before me it states “any significant changes”, whereas the ONA language  
applied to “any changes”. Article 18.06 in that agreement stated:  
18.06 Prior to effecting any changes or policies which affect nurses covered by this  
Agreement, the Hospital will discuss the changes with the Association and provide  
copies to the Association.  
172. Arbitrator Knopf stated as follows in this regard (at para. 3):  
The purpose of Article 18.06 is for the parties to be able to discuss and learn from each  
other about their respective interest and positions with regard to policies. Failure to  
abide by such a provision of the collective agreement not only amounts to unfortunate  
labour relations but it also makes the kinds of litigation that this case has become more  
inevitable. Given the concession of the Employer and the facts as presented by the  
parties, the Board of Arbitration declares that the Employer violated Article 18.06 in its  
failure to meet with the Association prior to implementing the confidentiality policy.  
41  
Further, the Board orders that the Hospital abide by both the language and the spirit of  
Article 18.06 in the future.  
173. Unlike in the case before me, in that instance the hospital had conceded that it  
failed to abide by the collective agreement regarding the development of, and  
notification to, the union regarding a confidentiality policy (para. 2) and had not  
provided the union with a copy of the new policy prior to implementing it. As such,  
it does not appear that arguments were made in this regard. At para. 35 of the  
decision the arbitrator declared that the hospital had violated the provision of the  
collective agreement by failing to meet with ONA prior to implementing the  
confidentiality policy, and ordered that it “abide by both the language and spirit” of  
the article in the future.  
174. That is not the situation before me. Here the Employer did not concede that it  
had breached Art. 18.4, although based on the evidence before me it is clear that it  
had done so, and I have so found.  
175. However, unlike the faculty association in the Norquest College decision, cited  
above, which sought damages for a college’s failure to abide by a provision that the  
parties make “an earnest effort to settle issues” arising out of the application of the  
collective agreement, and to do so “fairly and promptly through discussion”, the  
Union in this case has not sought damages. In any event, in that case although the  
grievance was upheld, the majority declined to award damages based on the  
particular circumstances before them.  
176. Therefore, in respect of Art. 18.4, I make the following declaration and order:  
- I declare that the Employer violated Art. 18.4 of the collective agreement  
when it failed to discuss with the Union its significant changes to its COVID-  
19 vaccination policy, and failed to provide the Union with a copy of that  
policy prior to effecting the changes; and,  
- I order that in the future the Employer abide by the language and spirit of  
Art. 18.4.  
Did the Employer breach Article 18.5 of the collective agreement when it  
included in the Policy the disciplinary penalty of termination of employment?  
177. The Union argued that the Employer violated Art. 18.5 when it promulgated  
the disciplinary aspect of the September 2021 Mandatory Vaccination Policy  
without first reaching an agreement with the Union about this significant change to  
the existing rights, privileges, benefits, practices or working conditions of bargaining  
unit members. For ease of reference, Art. 18.5 is reproduced again here:  
42  
18.5 Existing rights, privileges, benefits, practices and working conditions shall be  
continued to the extent that they are more beneficial and not inconsistent with the  
terms of this Collective Agreement unless modified by mutual agreement of the  
Employer and the Union.  
178. From the parties’ 2014 interest arbitration award, Chartwell Seniors Housing  
REIT, cited above, I note that while it was a first collective agreement for HOPE with  
this Employer it was not in reality a first agreement to the extent that LIUNA Local  
1110 had represented this bargaining unit previously, and had been displaced by  
HOPE. The term of HOPE’s first collective agreement was from June 25, 2012 to  
June 24, 2014. What is now Art. 18.5 (then referred to as 19.05 in the interest  
arbitration award) was specifically awarded to the Union as a “status quo” provision  
in the 2014 interest arbitration award. Since the parties have had a number of  
rounds of bargaining (and perhaps interest arbitration) since that time, it is difficult  
to accept the Employer’s assertion that Art. 18.5 was just a provision awarded in the  
parties’ first collective agreement, intended to ensure that some prevailing practice  
or benefit did not get lost in the shuffle to reach a first collective agreement between  
parties who are “new” to each other.  
179. Application of this provision to the circumstances before me requires  
interpretation of the words used in Art. 18.5. It has long been accepted that when  
arbitrators are faced with a language interpretation issue, unless there is evidence  
to the contrary, they should assume that the language before them should be read in  
its normal or ordinary sense, unless that would lead to an absurdity or  
inconsistency with the rest of the collective agreement, or unless the context reveals  
that the words were used in some other sense. If the language is not ambiguous,  
and does not lack clarity in meaning, effect must be given to the words used  
notwithstanding the result that may ensue.  
180. The first consideration then in this instance is to ascertain whether there was  
an existing practice or working condition regarding employee vaccinations that was  
more beneficial to the bargaining unit than what the Employer promulgated in its  
September 2021 Mandatory Vaccination Policy.  
181. As already noted, for the purposes of this grievance the Union accepts the  
mandatory nature of this policy because, since the time that the Employer  
implemented its September 2021 Mandatory Vaccination Policy, the October 1,  
2021 Minister’s Directive requires that LTC home employees be vaccinated in order  
to enter a home or work. As such, the mandatory aspect of this policy can no longer  
be questioned because it is now government-directed.  
182. Prior to August 26, 2021, pursuant to either the Immunization Program (from  
at least 2012 on, last updated in March 2020) or the June 2021 Vaccination Policy  
introduced during the COVID-19 pandemic, it appears that bargaining unit  
employees were not subject to discipline if they chose not to be vaccinated. I say  
“appears’ because under the Immunization Program, the most specific protocol  
43  
regarding vaccine refusal was with respect to flu vaccinations. Thus, while it is not  
clear whether employees could refuse other vaccinations that may be government  
or Employer recommended, they could refuse annual flu vaccinations. There were  
consequences for doing so, but the Immunization Program did not include a  
disciplinary penalty. If such unvaccinated workers also refused to take Tamiflu or  
some other flu antidote, they were held out of work during a flu outbreak in a home,  
until the outbreak was declared over. The Union’s undisputed evidence is that while  
employees were put off work if unvaccinated, no employee had ever been  
disciplined for failing to get a flu vaccine. It is noteworthy that the 2012  
Immunization Program and this practice pre-dated HOPE’s 2014 first collective  
agreement for these Chartwell homes, and continued thereafter.  
183. With respect to the COVID-19 vaccines, as outlined in the evidence, the June  
2021 Vaccination Policy did not require an employee to get vaccinated, and offered  
other options. Nothing in that policy indicated there would be disciplinary penalties  
for failing to get vaccinated or for failing to get the required vaccine education, or if  
the employee would not get tested before each shift. Only if an employee accepted  
none of the options on offer by the deadline of July 30, 2021, was the person to be  
put off work until the requirements had been met.  
184. The Union also pointed to the Employer’s practice regarding mandatory  
continuing education. If employees did not finish their mandatory education before  
a deadline, they may be held out of the schedule until they did, but there were no  
disciplinary penalties for failing to meet the mandatory requirement.  
185. The Employer argued that these policies or practices did not indicate that the  
Employer could not invoke discipline if an employee failed to comply with a policy.  
While that is true, there was no evidence in this case that it had in fact invoked  
disciplinary sanctions at any time, particularly regarding its vaccination policies. As  
the Union put it, in the context of Art. 18.5, “silence is golden”, as the consistency  
between what the program or policy said, and what the Employer actually did, is  
what establishes what the existing practice or working condition had been.  
186. Based on this evidence, I find that the existing practice and working condition  
of bargaining unit employees who were non-compliant with the Employer’s  
vaccination policies was that they would be taken off the schedule, and effectively  
put on an unpaid leave of absence. That practice and working condition was more  
beneficial to them than the change in the September 2021 Mandatory Vaccination  
Policy which imposes, in addition to the leave of absence penalty, the alternative of a  
disciplinary penalty of discharge for refusal to be vaccinated or provide a medical  
exemption.  
187. Was the existing practice and working condition inconsistent with the terms of  
the collective agreement? Apparently not, as the Employer had exercised its  
management rights to institute its Immunization Programs previously, and the June  
2021 COVID-19 Vaccination policy as recently as June 2021; and, both had set the  
44  
consequences in each policy, without a grievance from the Union claiming a breach  
of the collective agreement.  
188. Pursuant to Art. 18.5 then, such existing practice and working condition  
regarding vaccinations, which was more beneficial, and not inconsistent with the  
terms of the collective agreement, “shall be continued” “unless modified by mutual  
agreement of the Employer and the Union”.  
189. As is obvious from the review above of the facts in this case as they relate to  
Art. 18.4, there was no discussion with the Union before the Employer imposed the  
September 2021 Mandatory Vaccination Policy. Furthermore, as was clear from Ms.  
Randazzo’s email to the Employer, at the time the Union did not agree with either  
the mandatory nature nor the disciplinary aspect of the new policy. Hence, on  
August 26, 2021 immediately after the Union became aware of the press release, Ms.  
Randazzo put the Employer on notice of the Union’s belief that under Art. 18.5, the  
Employer had to discuss the new policy and get the agreement of the Union.  
However, there was no meaningful discussion with the Union about the new policy.  
To the extent that the parties may have had a discussion at the Step 2 grievance  
meeting, it is clear that no agreement was reached as the Union forwarded this  
grievance to expedited arbitration after it received the Employer’s denial of the  
grievance.  
190. The Employer argued that the Management Rights clause has to have meaning,  
and is a collective agreement term with which it would be inconsistent to find that  
there were existing practices and working conditions that would hamper the  
Employer’s management rights.  
191. In the normal course, that may well be a good argument. However, these  
parties, in this collective agreement, in the Management Rights clause itself, have at  
Art. 2.2(d) recognized that the Employer may only “exercise any of the rights,  
powers, functions or authority which the Employer has prior to the signing of this  
Agreement except as those rights, powers, functions or authorities are specifically  
abridged or modified by this Agreement” (emphasis added). That clause must also  
be given its plain meaning, read in the context of the rest of the collective  
agreement.  
192. In this agreement, Art. 18.5 is a provision that specifically abridges the  
Employer’s exclusive right “to make, alter and enforce reasonable rules and  
regulations to be observed by employees” to the extent that those employees may  
have enjoyed existing practices or working conditions that were more beneficial to  
them. In such instances, the collective agreement provides at Art. 18.5 that the  
Employer and Union would have to reach mutual agreement on how the particular  
more beneficial aspect could be modified.  
193. As the Union indicated in its submissions, this is an unusual provision, and  
neither party provided any case law where a similar provision had been interpreted.  
45  
I note again, the Union’s insistence that it is not an anti-vaccination union, and it  
wants all its members to get vaccinated. The only aspect of the September 2021  
Mandatory Vaccination Policy with which it takes issue now is that an employee  
who is non-compliant with the policy is subject to being terminated from  
employment, rather than being left on an unpaid leave of absence, as had been the  
existing practice or working condition.  
194. As noted above, the Union is not objecting here to the mandatory aspect of the  
policy in light of the Minister’s Directive requiring mandatory vaccination for all LTC  
home employees in order for them to enter a home. However, it points out that the  
Directive did not indicate that employers should terminate the employment of those  
who do not comply: The Minister instead indicated that employers had to consider  
their collective agreements, which in this instance, the Union states envisages the  
Employer getting the Union’s agreement if it wants to change the established  
practice and working condition these employees have enjoyed as regards  
vaccination policies. As such, the Union requests that the disciplinary aspect of the  
policy be declared inoperative as it is a violation of the collective agreement.  
195. Having considered the collective agreement language, and for all the reasons  
outlined above, I find that the Employer breached Art. 18.5. The employees of this  
bargaining unit had enjoyed a more beneficial practice and working condition  
regarding the consequence of remaining unvaccinated; that practice or working  
condition was not inconsistent with the terms of the collective agreement; and the  
parties have not agreed to modify that practice or working condition. I therefore  
make the following declaration and orders:  
- I declare that the Employer violated Art. 18.5 of the collective agreement  
when it failed to continue the existing practice or working condition of  
putting employees on an unpaid leave of absence when they failed to comply  
with a vaccination policy, and failed to discuss with the Union the new  
disciplinary aspect of the September 2021 Mandatory Vaccination Policy, in  
order to try to reach a mutual agreement.  
- I order that in the future the Employer abide by the language of Art. 18.5;  
and,  
- I order that unless the parties agree otherwise, the statement “or may have  
their employment terminatedas it applies to these HOPE bargaining unit  
members, be struck from the September 2021 Mandatory Vaccination Policy,  
the November 2021 revised version of this Policy, and any other revision of  
this particular policy.  
Is the September 2021 Mandatory Vaccination Policy reasonable, particularly  
as it relates to the consequences of non-compliance?  
46  
196. An evaluation of whether the unilaterally imposed September 2021 Mandatory  
Vaccination Policy is reasonable must be conducted in light of my findings above,  
and in particular having regard to the finding that the Employer has breached Art.  
18.5 in respect of the disciplinary aspect of non-compliance with the policy.  
197. In Irving Pulp & Paper, cited above, the Supreme Court of Canada cited with  
approval the KVP test, and as well noted that an employer’s unilaterally imposed  
rule or policy has to be “reasonable”. Writing for the majority, Abella J. stated:  
22. When employers in a unionized workplace unilaterally enact workplace rules and  
policies, they are not permitted to “promulgate unreasonable rules and then punish  
employees who infringe them” (Re United Steelworkers, Local 4487 & John Inglis Co.  
Ltd. (1957), 7 L.A.C. 240 (Laskin), at p. 247; see also Re United Brewery Workers, Local  
232, & Carling Breweries Ltd. (1959), 10 L.A.C. 25 (Cross)).  
23. This constraint arises because an employer may only discharge or discipline an  
employee for “just cause” or “reasonable cause” — a central protection for employees.  
As a result, rules enacted by an employer as a vehicle for discipline must meet the  
requirement of reasonable cause (Re Public Utilities Commission of the Borough of  
Scarborough and International Brotherhood of Electrical Workers, Local 636 (1974), 5  
L.A.C. (2d) 285 (Rayner), at pp. 288-89; see also United Electrical, Radio, and Machine  
Workers of America, Local 524, in re Canadian General Electric Co. Ltd.  
(Peterborough) (1951), 2 L.A.C. 688 (Laskin), at p. 690; Re Hamilton Street Railway Co.  
and Amalgamated Transit Union, Division 107 (1977), 16 L.A.C. (2d) 402 (Burkett), at  
paras. 9-10; Ronald M. Snyder, Collective Agreement Arbitration in Canada (4th ed.  
2009), at paras. 10.1 and 10.96).  
24. The scope of management’s unilateral rule-making authority under a collective  
agreement is persuasively set out in Re Lumber & Sawmill Workers’ Union, Local 2537,  
and KVP Co. (1965), 16 L.A.C. 73 (Robinson). The heart of the “KVP test”, which is  
generally applied by arbitrators, is that any rule or policy unilaterally imposed by an  
employer and not subsequently agreed to by the union, must be consistent with the  
collective agreement and be reasonable (Donald J. M. Brown and David M.  
Beatty, Canadian Labour Arbitration (4th ed. (loose-leaf)), vol. 1, at topic 4:1520).  
25. The KVP test has also been applied by the courts. Tarnopolsky J.A. launched the  
judicial  
endorsement  
of KVP in Metropolitan  
Toronto  
(Municipality)  
v.C.U.P.E. (1990), 1990 6974 (ON CA), 74 O.R. (2d) 239 (C.A.), leave to appeal  
refused, [1990] 2 S.C.R. ix, concluding that the “weight of authority and common  
sense” supported the principle that “all company rules with disciplinary  
consequences must be reasonable” (pp. 257-58 (emphasis in original)). In other  
words:  
47  
The Employer cannot, by exercising its management functions, issue  
unreasonable rules and then discipline employees for failure to follow  
them. Such discipline would simply be without reasonable cause. To  
permit such action would be to invite subversion of the reasonable cause  
clause. [p. 257]  
26. Subsequent appellate decisions have accepted that rules unilaterally made in the  
exercise of management discretion under a collective agreement must not only be  
consistent with the agreement, but must also be reasonable if the breach of the rule  
results in disciplinary action (Charlottetown (City) v. Charlottetown Police  
Association (1997), 1997 4577 (PE SCAD), 151 Nfld. & P.E.I.R. 69 (P.E.I.S.C.  
(App. Div.)), at para. 17; see also N.A.P.E. v. Western Avalon Roman Catholic School  
Board, 2000 NFCA 39, 190 D.L.R. (4th) 146, at para. 34; St. James-Assiniboia Teachers’  
Assn. No. 2 v. St. James-Assiniboia School Division No. 2, 2002 MBCA 158, 222 D.L.R.  
(4th) 636, at paras. 19-28).  
27. In assessing KVP reasonableness in the case of unilaterally imposed employer  
rules or policies affecting employee privacy, arbitrators have used a “balancing of  
interests” approach. As the intervener the Alberta Federation of Labour noted:  
Determining reasonableness requires labour arbitrators to apply their  
labour relations expertise, consider all of the surrounding circumstances,  
and determine whether the employer’s policy strikes a reasonable  
balance. Assessing the reasonableness of an employer’s policy can  
include assessing such things as the nature of the employer’s interests,  
any less intrusive means available to address the employer’s concerns,  
and the policy’s impact on employees. [I.F., at para. 4]  
198. The KVP test is found at para. 34 of that decision, cited above:  
Characteristics of Such Rule  
34. A rule unilaterally introduced by the company, and not subsequently agreed to  
by the union, must satisfy the following requisites:  
1. It must not be inconsistent with the collective agreement.  
2. It must not be unreasonable.  
3. It must be clear and unequivocal.  
4. It must be brought to the attention of the employee affected before the  
company can act on it.  
5. The employee concerned must have been notified that a breach of such rule  
could result in his discharge if the rule is used as a foundation for discharge.  
6. Such rule should have been consistently enforced by the company from the  
time it was introduced.  
48  
Effect of Such Rule re Discharge  
1. If the breach of the rule is the foundation for the discharge of an employee  
such rule is not binding upon the board of arbitration dealing with the  
grievance, except to the extent that the action of the company in discharging  
the grievor, finds acceptance in the view of the arbitration board as to what  
is reasonable or just cause.  
2. In other words, the rule itself cannot determine the issue facing an  
arbitration board dealing with the question as to whether or not the  
discharge was for just cause because the very issue before such a board may  
require it to pass upon the reasonableness of the rule or upon other factors  
which may affect the validity of the rule itself.  
3. The rights of the employees under the collective agreement cannot be  
impaired or diminished by such a rule but only by agreement of the parties.  
199. Based on the evidence before me I am satisfied that the policy as it relates to  
mandatory vaccination is clear and unequivocal; it was brought to the attention of  
all employees in the bargaining unit, and particularly those who were going to  
potentially be negatively affected by it, before it was acted upon; by mid to late  
October 2021 and thereafter on a few occasions, the potentially affected employees  
were advised that they would be discharged based on the rule; and, since the  
introduction of the September 2021 Mandatory Vaccination Policy, it has been  
consistently applied to the extent that the terminations of the fourteen individuals  
in December 2021 were the first Employer applications of the new policy.  
200. This leaves the KVP questions of whether the policy is consistent with the  
terms of the collective agreement and is reasonable.  
201. In the normal course I would have to first address the question of whether  
having a mandatory vaccination policy is reasonable in all the circumstances. When  
reviewing mandatory vaccination policies in the current COVID-19 context,  
arbitrators have in each instance, considered the particular facts and circumstances  
of the case before them when deciding whether it is reasonable for an employer to  
introduce such a policy, or impose certain consequences for non-compliance with  
the policy.  
202. As an example, in the November 2021 Electrical Safety Authority decision  
Arbitrator Stout wrote as follows:  
[14] Context is extremely important when assessing the reasonableness of a  
workplace rule or policy that may infringe upon an individual employee’s rights.  
The authorities reveal a consensus that in certain situations, where the risk to  
health and safety is greater, an employer may encroach upon individual employee  
49  
rights with a carefully tailored rule or policy, see Carewest v. AUPE (2001), 104  
L.A.C. (4th) 240 ( Smith).  
[15] In cases where the rule or policy involves health and safety, one must consider  
the obligations that arise under the Occupational Health and Safety Act, including an  
employer’s obligation to “take every precaution reasonable in the circumstances for  
the protection of the worker,” see s. 25(2)(h). This statutory obligation fits neatly  
within the KVP test, which is grounded in a contextual analysis and a balancing of  
interests approach to determine the reasonableness of any rule or policy.  
[16] While an individual employee’s right to privacy and bodily integrity is  
fundamental, so too is the right of all employees to have a safe and healthy  
workplace. The interests in this case raise extremely important public policy issues  
during a very unique and difficult time in our history. The context is very unusual,  
but the existing law provides guidance for the analysis.  
[17] In workplace settings where the risks are high and there are vulnerable  
populations (people who are sick or the elderly or children who cannot be  
vaccinated), then mandatory vaccination policies may not only be reasonable but  
may also be necessary and required to protect those vulnerable populations.  
203. In this case, as a result of the October 1, 2021 Minister’s Directive, and the  
Union’s acceptance of the Minister’s authority to issue that mandatory vaccination  
directive, the mandatory nature of the Employer’s policy is not a live issue. As such,  
there is no dispute that the mandatory nature of the September 2021 Mandatory  
Vaccination Policy is reasonable.  
204. The Union is also not disputing the policy provision regarding non-compliant  
employees being put off work on an unpaid administrative leave of absence, because  
that had been the practice at this Employer in the past for non-compliance with  
vaccination policies. In any event, pursuant to the Minister’s Directive, a non-  
compliant worker could not attend at the home if not vaccinated by the provincial  
deadline of November 15, 2021. However, the Union argues that it is the nature of  
the Employer response for non-compliance with the policy, to the extent that it  
results in termination of employment, that is unreasonable. It argues there is no  
legitimate or important management interest in requiring the disciplinary response  
of termination when the policy already had, and continues to have, the unpaid  
administrative leave of absence penalty for non-compliance.  
205. I have found earlier that the Policy, as it relates to the inclusion of the  
termination of employment provision, is a violation of Art. 18.5 of the collective  
agreement. It can therefore, on its face, be found to be inconsistent with the terms  
of the collective agreement. Notwithstanding that finding, and in the event that I am  
wrong in that regard, it is nonetheless necessary to consider whether it is  
reasonable to include in the policy the alternative penalty that an employee may be  
terminated for non-compliance.  
50  
206. Arbitrator Stout found in the November 2021 Electrical Safety Authority case,  
cited above, that the employer’s mandatory vaccination policy was not reasonable in  
part because it contained a provision for discipline and discharge for failing to get  
vaccinated. Based on the facts before him, he found that the vast majority of the  
work being done by the ESA employees was being done remotely, and for those  
unvaccinated employees who had to be at the workplace or elsewhere, the testing  
regime or other reasonable means were working. The arbitrator noted that there  
was no evidence of any actual problems in the workplace that could not be  
addressed, and stated as follows:  
36. In my view, disciplining or discharging an employee for failing to be vaccinated,  
when it is not a requirement of being hired and where there is a reasonable  
alternative, is unjust. Employees do not park their individual rights at the door when  
they accept employment. While an employer has the right to manage their business,  
in the absence of a specific statutory authority or specific provision in the collective  
agreement, an employer cannot terminate an employee for breach of a rule unless it  
meets the KVP test and [is] found to be a reasonable exercise of management rights.  
207. In Bunge Hamilton, cited above, a union filed a policy grievance about a new  
COVID-19 vaccination policy. The employer had introduced the policy on November  
9, 2021 after being advised a week earlier by its landlord, the Hamilton Oshawa Port  
Authority (“HOPA”), that effective January 24, 2022, anyone coming on the HOPA  
properties had to be fully vaccinated against COVID-19, or provide certified medical  
contraindication of an inability to be vaccinated. The employer’s new policy  
required that employees provide proof of vaccination by no later than January 24,  
2022, and reminded employees that to be considered fully vaccinated they had to  
have completed their final dose two weeks before. Failure to provide proof of full  
vaccination status by the deadline would lead to the employee being put on an  
unpaid leave of absence until they provided proof of full vaccination, or if they didn’t  
intend to provide proof of vaccination, pending final determination of their  
employment status, up to and including termination of employment.  
208. The union objected to the policy on a number of grounds, including claiming it  
was unreasonable because it envisaged unvaccinated employees being put on  
unpaid leaves of absence, or being disciplined or terminated from employment. The  
arbitrator denied the grievance. He found that the requirement to disclose  
vaccination status was reasonable because while it envisaged non-compliant  
employees being put on an unpaid leave of absence, it did not stipulate that they  
were being put on a disciplinary suspension, nor did it say they would be  
terminated. Rather, it indicated they were being put on an unpaid leave of absence  
pending a final determination of their employment status, which may include  
discipline or termination.  
209. In this regard, Arbitrator Herman wrote:  
30.  
With respect to the references in the Vaccine Policy to discipline and  
51  
termination, as the Vaccine Policy states, at this stage discipline or termination are  
only possibilities. It is reasonable, if not required, for an employer to put  
employees on notice of potential consequences of non-compliance with a rule or  
policy, and the Vaccine Policy does this. When or if discipline is meted out or an  
employee is discharged, a grievance can be filed. Any resulting arbitration would  
provide opportunity to consider whether the Employer can establish just cause for  
the suspension or termination, as the case may be, and that determination is likely  
to involve consideration of the circumstances at hand at the time of the suspension  
or termination, circumstances that cannot be known at the present time.  
31.  
It is therefore reasonable for the Vaccine Policy to include a statement that  
employees who are not fully vaccinated by January 24, 2022 “will not be allowed on  
the site and put on unpaid leave pending a final determination on their employment  
status (up to and including termination of employment)”.  
210. The decision in Maple Leaf Sports and Entertainment, cited above, also  
addressed a mandatory vaccination policy, albeit in the context of a particular  
grievor who had been put on an unpaid leave of absence due to his undisclosed  
vaccination status. The employee worked at the Scotia Bank Arena, one of the  
venues operated by the employer where its professional sports teams play. His job  
was to assist in the conversion of the arena from one type of event to another, so he  
had to work in close proximity with up to 100 people. After the Ontario government  
announcement on September 1, 2021 that patrons to events would have to be fully  
vaccinated or provide proof of certain exceptions, the employer issued a policy the  
next day requiring that all its employees had to be fully vaccinated by October 31,  
2021. Employees were told that if they were not fully vaccinated by the deadline, or  
had not disclosed their vaccination status by that date, they would be put on an  
indefinite unpaid leave of absence and may be subject to termination. The grievor  
refused to disclose his vaccination status by the deadline, and was put on unpaid  
leave of absence.  
211. Arbitrator Jesin denied the grievance and stated as follows:  
19. It is clear that the weight of authority supports the imposition of vaccine  
mandates in the workplace to reduce the spread of Covid 19. That is particularly  
so where employees work in close proximity with other employees, as they do in  
this case. The authority to impose such mandates arises not only from  
management’s right to implement reasonable rules and regulations but also from  
the duty of employers to take any necessary measures for the protection of  
workers as set out in OHSA. Indeed, the Union has emphasised that it is not  
challenging the Employer’s vaccine mandate in this case but is only seeking to  
protect the employee’s right to keep personal medical information private.  
20. It seems to me that that by opposing the disclosure of vaccine status the Union is  
indeed challenging the vaccine mandate. I do not see how the Employer can  
enforce a vaccine mandate without requiring disclosure of an employee’s vaccine  
status. Without that information it cannot ensure that all employees are  
vaccinated. In that regard the arbitral authority makes it clear that Employers are  
52  
indeed entitled to seek disclosure of an employee’s vaccine status to the extent  
necessary to administer a vaccine policy in the workplace, particularly if the  
information is secured and protected from unnecessary disclosure. I endorse and  
agree with those authorities. I also accept that the Employer has put procedures  
in place to secure and adequately protect the confidentiality of any such  
information.  
21. I do not agree with the Union’s contention that the seniority rights accorded in  
Article 13 are being denied. Rather, the Employer has established that being  
vaccinated for Covid 19 is a necessary qualification for the performance of work  
within the bargaining unit. Such a determination is reasonable given the  
pandemic that presently exists. More fundamentally, it is a reasonable and  
appropriate approach to fulfilling its duties under OHSA for the protection of all  
workers in its employ. Furthermore, the Employer in this case has taken  
appropriate steps to protect the confidentiality of any information that is  
disclosed under its policy.  
212. What is clear from a review of these decisions is that arbitrators have accepted  
that a mandatory vaccination policy will likely be found to be reasonable in the  
current COVID-19 context and having regard to employers’ responsibilities to  
maintain a safe and healthy workplace for all employees. They have also found  
reasonable those policies that included putting employees on notice that if they  
remain unvaccinated (or those who fail to disclose their vaccination status or don’t  
have a medical exemption) they will be subject to being placed on an unpaid leave of  
absence, and may be subject to termination of employment. What these decisions  
have not stated is that termination is an automatic outcome for failure to get  
vaccinated, and in none of the cases had the Employer in fact enacted any  
terminations of employment.  
213. It is interesting to note that in the Ontario Power Generation decision, cited  
above, the employer’s “COVID-19 Response Instruction” to its employees was  
upheld as it regarded what should happen to those employees who were  
unvaccinated, refused to disclose their vaccination status, and would not agree to  
undergo Rapid Antigen Testing. The employer in that case had advised employees  
that effective September 23, 2021 unvaccinated workers were required to undergo  
Rapid Antigen Testing initially once per week, and then twice per week. If an  
employee refused, they would be placed on an unpaid leave of absence. If, after 6  
weeks, the employee did not change their mind and agree to the testing regimen,  
their employment would be terminated for cause.  
214. Arbitrator Murray found as follows (at pp. 6 -7 of the unpaginated decision):  
As noted above, OPG has indicated its intention to place some employees on an  
unpaid leave of absence. Those potentially affected are unvaccinated employees (i.e.  
those who identify as unvaccinated and those who decide not to disclose their  
vaccination status) who refuse to participate in the Rapid Antigen Testing program.  
53  
The Union asserts that sending those unvaccinated employees who refuse to  
participate in Rapid Antigen Testing is a violation of Article 2A.3. I do not agree. In  
this situation, where most employees have been vaccinated, and virtually all the rest  
are willingly participating in the reasonable alternative of Regular Rapid Antigen  
Testing, employees who refuse to do either can be sent home on an unpaid leave  
pending completion of the discipline process.  
The employees who will be placed on an unpaid leave of absence are  
refusing to take the necessary and reasonable step of taking a minimally  
intrusive test that would demonstrate that they are fit to work and do not  
present an unnecessary risk to their co-workers during a global pandemic  
that has cost 29,000 lives in this country and at least 5 million world-wide.  
Given this refusal, the Company is sending them home on an unpaid leave  
pending completion of the disciplinary process. Unlike other occasions  
when the Company sends someone home pending potential discipline, in  
these circumstances, it is completely within the control of the employee to  
decide when to come back to work. All they need to do is to agree to  
participate in the Rapid Antigen Testing programme which is designed to  
reduce the risk they present to their fellow employees by remaining  
unvaccinated a test that has been endorsed by the Chief Medical Officer  
of Health and other appropriate authorities as being safe and effective. I  
view this as sensible and necessary part of a reasonable voluntary  
vaccination and testing program.  
The Company has given employees who are sent home without pay 6 weeks to  
consider whether they are willing to partake in the testing regime like so many of  
their colleagues. I think it is important for them to understand that, in my  
preliminary view, in the context presented by this global pandemic, when lives of  
co-workers are at risk, 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. The Company  
has made it clear that termination of employment at the end of the 6-week period  
will typically occur. It is important for those individuals who are fired for choosing  
to not be tested understand that they are very likely to find the termination of  
employment upheld at arbitration. Effectively, employees who refuse testing will  
likely have made a decision to end their career with this Company.  
215. Ontario Power Generation is a case where an arbitrator did uphold as  
reasonable a termination provision in a COVID-19 policy. However, it is  
distinguishable from the mandatory vaccination situation before me as it was in the  
context of a voluntary vaccination policy, with the alternative requirement for  
regular Rapid Antigen Testing. There is a significant difference between a refusal to  
undergo a test that requires the use of a swab in a voluntary vaccination regime and  
the requirement to be injected with a vaccine in a mandatory vaccination regime. I  
agree with Arbitrator Stout in the Electrical Safety Authority cases, cited above, that  
employees do not give up their individual rights to integrity of their person when  
they accept employment, so that it is unjust to require termination as a penalty for a  
failure to get vaccinated when there is a reasonable alternative. That reasonable  
alternative depends on the type of workplace in each instance.  
54  
216. The Management Rights clause (Art. 2.2) of the collective agreement before me  
gives the Employer the exclusive right to manage and direct its operations, including  
to “make, alter and enforce reasonable rules … to be observed by employees”. The  
restrictions on this right are found at Art. 2.2(d) and (e). Article 2.2(d) clarifies that  
the Employer’s management rights may be specifically abridged or modified by the  
terms of the agreement. Article 2.2(e) is the Employer’s commitment that it “shall  
exercise these rights in a fair manner consistent with this Agreement”.  
217. As is common to most collective agreements, the Management Rights provision  
also states that while the Employer has the right to discharge employees, that right  
is subject to challenge if an employee claims that they have been discharged without  
just cause (Art. 2.2(c)).  
218. The September 2021 Mandatory Vaccination Policy is categorical in its  
penalties for non-compliance: a non-compliant employee “will be placed on an  
unpaid administrative leave or may have their employment terminated” (emphasis  
added). There is no reference to the just cause standard, as the policy envisages  
only one of two possible outcomes for non-compliance, without any consideration of  
any other circumstances that may be relevant to a particular employee’s situation.  
219. The Employer’s letters to the fourteen employees who were terminated in  
December 2021 stated that in Chartwell’s view it had just cause to terminate simply  
based on each employee’s non-compliance with the Policy. Based on the evidence  
regarding the steps that the Employer had taken in giving employees vaccine  
education, time to consider their situation and to get vaccinated during the leaves of  
absence after October 12, 2021, along with the various letters advising of deadlines  
and access to vaccine education, the Employer requested that I provide the parties  
with a “generic just cause” ruling, to provide guidance to the parties on the “broad  
based application” of the policy to the fourteen individuals who were terminated  
from employment. It was seeking some direction about whether, through these  
actions, it had met the just cause standard. Thus, it is clear that in the Employer’s  
view, non-compliance with the policy along with the various steps it had taken  
should be sufficient to ground a finding of just cause.  
220. Furthermore, one of the Employer’s submissions was that it needed to know  
whether the termination aspect of the policy was reasonable because it is concerned  
that there will be employees who will not take the third vaccination, as required by  
the current Minister’s Directive, so it should not have to incur the costs associated  
with putting such employees on a leave of absence before terminating their  
employment for non-compliance since all employees in the bargaining unit now  
know about and understand the policy.  
221. There is no actual evidence before me of the necessity for termination in the  
circumstances as they stood in mid-December 2021. The number of workers off  
work as a result of being non-compliant with the policy amounted to around 2% of  
55  
all the workers in the bargaining unit: 14 out of 705. They were distributed among  
three of the four homes so that three employees were eventually terminated at the  
Woodhaven; two at the Wynfield; nine at the Westmount, and none at the  
Waterford.  
222. At that juncture the 14 employees had been on an administrative leave of  
absence for about eight weeks so there were clearly no imminent health and safety  
issues associated with having unvaccinated workers in the LTC homes. To the  
extent that pursuant to the provisions of the collective agreement the Employer had  
had any ongoing financial liability for those on administrative leaves of absence, by  
mid-December it no longer had to pay its portion of benefit premiums. In my view  
paying the employer portion of benefit premiums for fourteen employees for two  
months amounts to a very minor negative impact, especially as the Policy itself  
envisaged that employees would be put off work on unpaid administrative leaves of  
absence, so the Employer should have foreseen that it may incur some costs for  
benefit premiums. Also at that point in mid-December the affected workers were no  
longer accruing any further seniority.  
223. The Employer urged me to find that leaving non-compliant workers on a leave  
of absence was prejudicial to other workers who have been vaccinated and have  
therefore continued to work. There is no evidence before me of this alleged  
prejudice. To the extent that the Employer claims that those on a leave of absence  
continued to accrue seniority, that is a collective agreement right (Art. 10.9) that any  
bargaining unit member may enjoy for the first 60 continuous calendar days if they  
are on a leave of absence for any reason. As such, it is difficult to see how it would  
be a significant morale issue when it is a negotiated right for all employees.  
224. The Employer urged me to consider that there would be morale issues among  
those who had got vaccinated and continued to work, while others were off but still  
held their particular position and schedule line. This is not a particularly persuasive  
consideration as in any event, since the fourteen employees who were terminated  
from employment had the right to grieve their respective terminations, should they  
be reinstated they would have to be returned to their particular positions and