Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220

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 25^th, 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 12^thwould

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 1^stthe 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 12^thwould 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 15^thto 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

10

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 13^thbecause 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 12^thwhen 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

14

- 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

12^th[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. (4^th) 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.

(4^th) 170 (G. J. Charney); Chinook Health Region and U.N.A., Local 120, [2002] A.G.A.A.

No. 105, 113 L.A.C. (4^th) 289 (T. Jolliffe); Carewest v. Alberta Union of Provincial

Employees (Nasr Grievance), [2001] A.G.A.A. No. 76, 104 L.A.C. (4^th) 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. (4^th) 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 4^th,

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 24^thpress 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 26^th, 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, 5^thEdition, 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. (4^th) 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. (4^th) 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. (4^th) 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. (4^th) 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. (4^th) 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. (4^th) 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.

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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 12^th, 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 12^ththey 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

12^thwas 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 26^thbecause 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 26^threminding 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 26^th, 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 terminated” as 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.

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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

scheduling lines. Any employee who back fills for someone on a leave of absence, or

where a termination is grieved, has to be aware that their position is likely to be

temporary and contingent.

225. The Employer expressed concern on behalf of the bargaining unit that if a job

was posted, a non-compliant employee on a leave of absence could apply for the

position, use their accrued seniority to get the position, and thereby preclude

someone who was back filling a job from getting that job. This too is appears to be a

scenario that flows from the terms of the collective agreement, under which every

employee has the same rights. Even if that occurred, such an employee would not

be able to return to work unless they were fully vaccinated. In any event, there was

no evidence that in the two months that the fourteen (or originally 16) employees

were on unpaid administrative leaves of absence this issue arose.

56

226. To the extent that the Employer expressed concern about the loss of

employees to leaves of absence, I agree with the Union that nothing precludes the

Employer from hiring new employees to fill positions left vacant through the back-

filling process. It is also an ironic concern in light of the Employer and Union’s

common view that there is in fact a scarcity of workers to fill LTC home positions,

but this Employer terminated apparently long service employees pursuant to its

mandatory vaccination policy when it could have kept them on unpaid leaves of

absence hoping that they would come to understand that getting vaccinated was

their only way back to earning a living in their particular LTC home. In any event,

there was no evidence tendered of difficulties in recruitment and retention as a

result of fourteen or sixteen employees out of a workforce of 705 being on unpaid

leaves of absence between October and December 2021.

227. I cannot accept the Employer’s assertion that it would appear to employees

still working that those who were on leaves of absence because of failure to comply

with the policy were being rewarded for their “bad behaviour”. Non-compliant

employees who were off work on unpaid leave were not receiving any employment

income; after the first two months would not be accruing any seniority (while those

working would be accruing seniority); and, would have to pay the full cost for their

own benefits (or live without them) after the initial period when the Employer

shared in those costs.

228. The Union argued that there must be a balancing of the Employer’s interests

with those of the employees affected by the termination aspect of the policy. It

noted that, if terminated, rather than being left on unpaid leaves of absence, non-

compliant employees lose all accumulated seniority and their livelihoods. In this

particular case, the Union points out that they lost their livelihoods after just two

months of being on an unpaid leave of absence after the Employer’s strict

application of the mandatory vaccination policy termination provision.

229. As both the KVP and Irving Pulp & Paper decisions envisage, in considering the

reasonableness of a policy, there must be a balancing of the interests of the

employer with those of the employee who stands to be disciplined or terminated

pursuant to the employer’s unilaterally imposed policy.

230. As is clear from our experience of the COVID-19 pandemic over the last two

years, circumstances change quickly, and it is difficult to anticipate what may occur

next. The evidence in this case demonstrated that well: in March 2020, at the

beginning of the pandemic, the Employer changed its Immunization Program; in

June 2021 it introduced a new COVID-19 Vaccination policy; and by late August

2021 it introduced the September 2021 Mandatory Vaccination policy in response

to concerns about the Delta strain of the COVID-19 virus. We are now dealing with

the Omicron variant, and it is impossible to know what comes next.

57

231. Similarly, the Ontario government and public health authorities have been

changing their policies as each new wave of infection occurs or virus strain emerges.

New versions of vaccines and medications are being released on an ongoing basis to

assist with curbing or treating COVID infections. It is safe to say that the COVID-19

situation is fluid.

232. In this turbulent environment, the two months that the Employer waited

before terminating the non-compliant employees was a very short time in which to

make an irrevocable decision to terminate the employment of fourteen employees

for being unvaccinated. On the evidence of the limited time that the employees

were on an unpaid leave of absence, and essentially no time when they had the

experience of having neither benefits nor income, it is difficult to evaluate whether

being on continued unpaid leave for a longer time could have been an incentive to

get vaccinated so that the non-compliant workers could have become compliant and

returned to work.

233. In this case the Employer is seeking authorization to terminate employees

without having to wait even two months the next time it has to deal with non-

compliant employees. In the absence of evidence of any necessity or operational

effect on the homes it is difficult to find that the termination provision of the policy

is reasonable.

234. Furthermore, the automatic nature of the imposition of termination as a

penalty for non-compliance precludes the Union and an employee from relying on

any mitigating factors. As was clear from the Employer’s letters to both the

employees who attended the discipline meetings and those who did not attend their

discipline meetings in December 2021, the only reason given for each employee’s

termination was that they had not provided proof of COVID-19 vaccination or of a

medical exemption, and as such the Employer had “no choice but to terminate your

employment for just cause”. It appears the Employer is abrogating its duty to prove

just cause for termination by relying solely on its inclusion of the optional penalty of

termination in the policy.

235. I note again that this policy does not, as do some, suggest that non-compliant

employees will be put off work on an unpaid leave of absence, and may be subject to

discipline up to and including discharge. This policy says they will be placed on an

unpaid leave or may have their employment terminated. Thus, what this Employer

is seeking to do is to (as noted from its submissions) simply terminate employees

for non-compliance with their mandatory vaccination policy without having to go

through the step of the unpaid leave of absence as it has written both options into its

policy.

236. Earlier, I have quoted the entirety of para. 34 of the KVP decision, cited above,

because this is a case where the “Effect of such Rule re Discharge” part of the

paragraph, which is not generally included when the KVP rules are quoted in the

jurisprudence, is instructional. This collective agreement contains a “just cause”

58

provision in the Management Rights article. As the arbitrator noted in KVP, if breach

of a rule or policy, like the mandatory vaccination policy in this case, is the

foundation for discharge of employees, it cannot on its own be binding on a board of

arbitration unless the rule or policy is found to be reasonable, or just cause is

established. The existence of the rule or policy itself is not sufficient, and

employees’ collective agreement rights cannot be impaired or diminished except by

agreement of the parties.

237, It is for this reason that I cannot acquiesce to the Employer’s urging to make

findings about whether its course of conduct leading up to the December

terminations establishes, whether fully or partially, its obligation to meet the just

cause standard for the termination of each of the 14 individuals. My jurisdiction,

based on the policy grievance before me, is to address the questions posed by that

particular grievance. I am not seized of any individual termination grievance.

238. Nonetheless, there is no doubt that the KVP rules are designed to address the

arbitral concern that if a policy includes a termination provision for breach of the

policy, such a policy must be reasonable, and does not oust an employer’s onus to

establish just cause in each situation, unless the parties have agreed otherwise.

239. Based on my review of the policy, and the evidence before me, as well as the

parties’ submissions, I am satisfied that the inclusion of the discharge penalty as it is

articulated in the September 2021 Mandatory Vaccination Policy is unreasonable.

In the current context of the pandemic, where circumstances are constantly

changing such that it is impossible to know what the near future holds, the short

notice upon which the Employer wishes to act, and has in fact already acted, makes

termination irrevocable. It also apparently precludes an employee relying on any

mitigating factors, such as length of service, a clean disciplinary record, or any other

factor that may be considered in an employee’s particular circumstances.

240. Furthermore, there is no specific evidence before me of an actual health and

safety concern as a result of unvaccinated employees being kept off work on unpaid

leaves of absence, nor of any operational effect on the homes. This is not a situation

where as a result of an unvaccinated employee coming to work there may be an

outbreak that would lead to the dire consequences that LTC home residents have

experienced with each outbreak.

241. While I have considered here whether, even absent Art. 18.5, the termination

provision of the policy is reasonable on its own, I cannot simply ignore that

provision of the collective agreement. As I have found that the Employer has

violated Art. 18.5, it is material to consideration of whether the September 2021

Mandatory Vaccination Policy could be upheld. The first requirement of the KVP

test is whether a policy or rule is inconsistent with the collective agreement. I have

found that the termination provision of the policy is inconsistent with the collective

agreement by virtue of Art. 18.5.

59

242. As such, and for all the reasons outlined above, I find that the policy is both

unreasonable and inconsistent with the collective agreement to the extent that it

includes the termination provision as a consequence of non-compliance.

243. Despite my findings above, it is important to state that this decision should not

be taken by those employees who choose not to get fully vaccinated as indicating

that the Employer would never be able to terminate their employment for non-

compliance with the policy in question, or indeed any reasonable policy. It is only

the automatic application of this policy as it respects discharge that has been found

to be unreasonable. Employees must understand that even if their Union and the

Employer are unable to reach agreement pursuant to Art. 18.5, the Employer

continues to have its Management Right under the collective agreement to

terminate an employee for just cause. Hence, employees who remain non-compliant

with the policy should not think that they are protected forever from the possibility

of being dismissed, as the Employer may at some point do so if it feels it can

establish that it has just cause for termination of any particular employee. No

employer has to leave a non-compliant employee on a leave of absence indefinitely.

At some point, and subject to the Employer warning employees of the possibility of

termination, and having considered other factors, it will likely have just cause to

terminate the employment of such an employee.

SUMMARY

244. I note again for the record that the Union accepted that in respect of this

grievance 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, and the Union is not challenging the constitutionality of the

Minister’s Directives in this arbitration.

245. For all the reasons outlined above in each section of this decision, the

grievance is upheld.

246. In respect of Article 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.

247. In respect of Article 18.5, I make the following declaration and orders:

60

- 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 terminated” as 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.

248. Finally, I find that the September 2021 Mandatory Vaccination Policy is

unreasonable and inconsistent with the terms of the collective agreement to the

extent that it states as an alternative to the option of being put on an unpaid

administrative leave that employees who are non-compliant with the policy may

have their employment terminated.

249. The grievance is upheld, and I remain seized to address any issues that may

arise out of this decision.

Dated this 7^thday of February, 2022.

“Gail Misra”

Gail Misra, Arbitrator