IN THE MATTER OF AN ARBITRATION  
PURSUANT TO A COLLECTIVE AGREEMENT  
BETWEEN:  
REVERA INC.  
(BRIERWOOD GARDENS ET AL.)  
(“the Employer”)  
(“the Union”)  
-and-  
CHRISTIAN LABOUR ASSOCIATION OF CANADA  
AWARD  
Sole Arbitrator:  
Christopher White  
For the Employer:  
John J. Bruce  
Hicks Morley Hamilton Stewart Storie LLP  
Bass Associates PC  
Mary Claire Bass  
Peter Tsoporis  
Justine Boyd  
VP, Labour Relations and Health and Safety  
Director, Labour and Employment  
Mandie Kopitin  
Executive Director, Brierwood Gardens  
For the Union:  
Peter Vlaar  
Legal Counsel  
Kenneth Dam  
Labour Relations Representative  
Georgette Durrant Union Steward, Trillium Court  
Michelle McCauley Union Steward, Brierwood Gardens  
Pat Juniper  
Union Steward, Summit Place  
Dates of Hearing:  
January 31 and February 18, 2022  
1
THE GRIEVANCE  
1.  
I was appointed by the parties on November 30, 2021 as sole arbitrator of the Union’s  
policy grievance dated September 16, 2021 (“the Grievance”) alleging that the Employer’s  
COVID-19 mandatory vaccination policy constituted a breach of the Collective Agreements  
between the parties. With respect to those issues advanced at the hearing of this matter, the  
Grievance states, in part, as follows:  
Thank you for bringing to our attention the mandatory vaccination policy, announced to  
the media on August 26 and dated to be effective on October 12, 2021.  
CLAC agrees that COVID-19 is a very serious and highly contagious disease that  
disproportionately affected residents in Long-Term Care Homes and in some cases  
retirement homes in Ontario. CLAC supports the introduction of policies that require all  
employees to be fully vaccinated.  
We do not agree, however, that placing unvaccinated employees on indefinite leave  
after October 12 is a reasonable exercise of management rights in the effort to protect  
residents and staff from getting COVID-19, which is the expressed intention of the policy.  
Accordingly, on behalf of CLAC members employed by your organization, we submit  
this letter as a union policy grievance. The various local union affiliates of CLAC with  
representation rights for affected members, and the bargaining units at which they are  
employed are identified in an attachment to this letter. Those various CLAC local union  
affiliates are hereinafter referenced as “the union”.  
Mandating a medical procedure as a condition of maintaining employment is a breach of  
personal privacy and dignity that is not justified in light of the reasonable alternatives  
available that have proven to be effective. Indefinite leave, as described in the policy, is  
tantamount to termination of their employment. …  
Additionally, this policy was implemented without notice to, or consultation with the  
union.  
In support of these assertions, the union relies on the articles within the collective  
agreements that address Purpose, Management Rights, Strike and Lockout, Layoff /  
Seniority, Discipline, and any other relevant provisions therein.  
Accordingly, and for all of the foregoing, we request as relief that the policy be  
rescinded, and that the Employer revert to the policy framework set out in Chief Medical  
Officers COVID-19 Directive #6 issued August 17th, 2021.  
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Furthermore, we request that any employee adversely affected by the implementation of  
the policy that is the subject of this grievance be returned to work and made whole in  
respect of all losses suffered as a result.  
In the bargaining units listed below you will note that there are fourteen (14) collective  
agreements that refer policy grievances directly to arbitration and five (5) that refer a  
policy grievance to the second step. In light of the different requirements, we would like  
your written consent to deal with these policy grievances at the local bargaining units  
level as second step grievances.  
2.  
It may be noted that the Grievance references the Employer’s policy “dated to be  
effective October 12, 2021” that resulted in employees who were not fully vaccinated being  
placed on “indefinite leave”. Subsequent to the date of the Grievance, the Employer amended  
its policy on September 29, 2021 so as to provide, subject to certain conditions set out in  
greater detail below, unvaccinated employees might be terminated for “continued non-  
compliance” with the policy. The Employer further amended its policy on December 31, 2021  
so as to require LTC staff in its Ontario facilities to obtain a third vaccination shot (generally  
referred to as a booster) in order to be compliant with the policy as “fully vaccinated”. The  
parties have agreed that the Employer’s policy, amended as of the date of the hearing, is  
properly the subject of the Grievance before me.  
3.  
The parties have Collective Agreements that govern three types of operations; stand -  
alone long-term care homes (“LTC”s), stand-alone retirement homes (“RH”s) and facilities that  
combine LTCs with RHs (“LTC/RH”s). The Employer policy at issue governs all three types of  
operation. The parties agreed, in respect of each of the three types of operation, that I would  
answer the following questions as Phase I of the proceeding:  
i)  
Is the mandatory vaccination policy a reasonable workplace rule?;  
ii)  
Will an unpaid leave typically be an appropriate initial just cause consequence for an  
employee who decides not to comply with the vaccination requirement policy?; and  
iii)  
Will termination of employment typically be an appropriate just cause consequences for  
an employee who decides on a sustained basis not to comply with the vaccination  
requirement policy?  
4.  
I was advised that employees had been placed on unpaid leaves and subsequently  
terminated as a result of the application of the Employer’s policy. At this stage of the process  
the parties wished to be provided with guidance on the provisions of the policy generally but  
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irrespective of the outcome of this stage of the hearing, it was agreed that I would have  
jurisdiction to address the claims of individual employees affected by application of the policy  
having regard to their particular circumstances. In such cases, I would be required to answer  
the following question at Phase II of the hearing:  
i)  
Are there specific circumstances for this individual employee which warrant a deviation  
from the Arbitrator’s Phase I findings respecting the appropriateness of the unpaid leave  
and/or termination of employment consequences for this employee?  
THE HEARING PROCESS  
5.  
The parties agreed to an expedited process for the hearing of this matter. Prior to the  
first day of hearing, I was provided with an Agreed Statement of Facts (“the ASF”) together with  
those documents upon which the parties wished to rely in their submissions on the issues in  
dispute. On that first day of hearing, the parties took me through the ASF and the documents  
they had provided in order to provide the context for their legal arguments that were made  
during the second day of hearing. No witnesses, expert or otherwise, were called by the parties  
and all evidence was presented through the documents that the parties agreed were properly  
before me.  
6.  
The parties confirmed that this was not a case in which exemptions to the Employer’s  
policy on the basis of the Ontario Human Rights Code were at issue and no arguments in that  
regard were being advanced by the Union. Similarly, the parties advised that this was not a  
case in which the constitutionality of any applicable government legislation was being raised.  
Accordingly, the issue in dispute was simply whether the Employer’s policy could be upheld  
having regard to the terms and conditions of the Collective Agreements (together with any  
obligations existing pursuant to governing statutes).  
THE AGREED STATEMENT OF FACT  
7.  
The ASF provided by the parties (without the referenced documents attached) reads as  
follows:  
Date  
Fact/Event  
Background  
1. This Collective Agreement between Revera and CLAC covers 5 facility  
locations, each of which have LTC and Retirement Home facilities which have  
the following beds/units:  
4
Brierwood Gardens:  
79 LTC beds  
71 RH units  
Riverbend Place  
39 LTC beds  
92 RH units  
Summit Place  
95 LTC beds  
37 RH units  
Telfer Place  
45 LTC beds  
179 RH units  
Trillium Court  
34 LTC beds  
62 RH units  
2. The LTC facilities are governed by the Long-Term Care Homes Act, 2007 and  
its regulations (which are being replaced by the Fixing Long-Term Care Act,  
2021 when proclaimed into force). The Retirement Homes are governed by the  
Retirement Homes Act, 2010 and the Retirement Homes Regulatory Authority  
(“RHRA”) and regulations.  
3. Each of the 5 LTC Homes under the Collective Agreement is subject to the  
(Minister of LTC) Minister’s Directive (revised from time to time) respecting  
COVID19 and vaccines, as well as Directive #3 and other government and  
public health regulations, directives and recommendations governing LTC  
Homes.  
4. Each of the 5 Retirement Homes under the Collective Agreement are  
physically connected to their counterpart LTC Homes and there are, in varying  
degrees, shared/overlapping buildings, facilities, and staff. Accordingly, the 5  
Retirement Homes are subject to the (Minister of LTC) Minister’s Directive (as  
revised from time to time) respecting COVID19 and vaccines, as well as  
Directive #3 and other government and public health regulations, directives  
and recommendations governing Retirement and LTC Homes.  
5. Revera and CLAC also have collective agreements at 6 other retirement  
homes:  
5
The Beechwood  
Centennial Park  
Greenway  
King Gardens  
Lynnwood  
Maplecrest  
These other 6 RHs are standalone (i.e. not combined with LTC Homes). They  
are subject to the RHRA’s “RHRA Guidance: Implementation of the Chief  
Medical Officer of Health (OCMOH) for Mandatory Vaccination Policies in  
Retirement Homes”, recently replaced by the RHRA’s “Retirement Homes Policy  
to Implement Directive #3, Directive #3, and other government and public  
health regulations, directives and recommendations governing Retirement and  
LTC Homes.  
In addition, Revera and CLAC have collective agreements at 7 additional  
standalone long-term care homes:  
Eagle Terrace – Newmarket  
Garden City Manor  
Main St. – Toronto  
Oak Terrace – Orillia  
Pinecrest Manor – Lucknow  
Sumac Lodge – Sarnia  
Village on the Ridge  
March 2017 Pre-COVID & Continuing Immunization Policy Requirements:  
Revera LTC and RH staff are required to be immunized against certain diseases  
(e.g. Tuberculosis)  
(Modified  
Oct. 2019)  
May 31/21 Minister Directive issued requiring all LTC Homes to have a COVID-19  
immunization policy effective July 1, 2021  
June 8  
Revera communicated to CLAC the COVID19 Immunization Policy, effective July  
1 at all Revera LTC and RH sites.  
Week of  
June 8  
July 1  
Policy communicated to staff at various Revera sites.  
Effective date of COVID19 Immunization Policy at all Revera LTC and RH  
requiring (among other items) for all staff: (1) vaccination; (2) medical  
exemption; or (3) education.  
August  
August  
Screening measures were in place for all staff and visitors and continued on an  
ongoing basis  
Accommodation policies were in place and continued on an ongoing basis.  
6
August 26  
August 26  
Sept. 7  
Press release issued by a coalition of national seniors’ living operators, led by  
Revera, Chartwell, Sienna, Responsive, and Extendicare, announcing they will  
be making COVID-19 vaccination mandatory for their LTC and Retirement  
Home staff across Canada.  
Revera communicated to CLAC and staff the revised Policy requiring (among  
other items) for all LTC and RH staff to be (1) vaccinated; or (2) medical  
exemption, effective October 12. The Policy identified the consequences of  
non-compliance as an unpaid leave of absence.  
Chief Medical Officer of Health issued instructions to Retirement Homes  
identifying that “some retirement home staff … remain unvaccinated, posing  
risks to residents” and requiring all Retirement Homes to have a mandatory  
vaccination policy (including the express option to require all staff to be  
vaccinated except where medical exemption).  
Sept. 16  
As per the CMOH Instructions and as per Retirement Homes Act, 2010 , RHRA  
issued “RHRA Guidance: Implementation of the Chief Medical Officer of Health  
(OCMOH) for Mandatory Vaccination Policies in Retirement Homes”.  
Policy Grievance filed by CLAC  
Revera communicated to CLAC and staff the September 28 revised Policy,  
which included expressly adding termination of employment for continued non-  
compliance: “An existing staff member who refuses to adhere and/or comply  
with any of the measures outlined above will be placed on an unpaid leave until  
they comply, or their employment is terminated.  
Sept. 16  
Sept 29  
October 1  
Oct. 6 – 11  
Ministry Directive issued requiring that each LTC home’s COVID19  
immunization policy must include a mandatory vaccination requirement  
(except where medical exemption) by November 15, 2021.  
Notice of Unpaid LOA Letters issued to non-compliant staff, with LOA effective  
Oct. 13  
October 13 Non-compliant employees place on unpaid LOA.  
Nov. 6 – 11 1st follow-up notice letter sent to staff respecting non-compliance and warning  
of termination.  
Nov. 4  
Revised Ministry Directive issued, setting revised deadline of December 13 for  
LTC staff to be fully vaccinated (if they had received their 1st dose by November  
15).  
Nov. 15  
Nov. 26 –  
30  
Minor revisions to Policy (updated new hire and volunteer sections)  
2nd follow-up notice letter sent to staff respecting non-compliance and warning  
of termination.  
On or about Termination of employment letters issued to staff who had been on unpaid  
LOAs and who continued to be non-compliant with Policy.  
Dec. 13  
December  
Compliance #’s at each location:  
Location  
Brierwood Gardens  
Total CLAC Staff Placed on LOA Terminated Compliance  
106 11 92%  
9
7
Riverbend Place  
Summit Place  
Telfer Place  
94  
146  
117  
66  
3
11  
2
11  
98%  
92%  
98%  
98%  
3
2
2
1
Trillium Court  
At the 5 Homes there were:  
Zero religious accommodation exemptions.  
One medical accommodation exemption.  
The total terminations at all Revera locations (not just the 5 Homes) for non-  
compliance with the Policy were:  
LTC: 223  
RH: 93  
The percentage of staff at the 5 Homes who were fully vaccinated increased  
significantly from August 25 through October 12. [Attached spreadsheet is  
omitted from the Award.]  
From July 15 to October 15, 2021, the testing protocol was that all staff,  
visitors and contractors who were not fully vaccinated were to be Rapid  
Antigen Test tested 2 times weekly/day of. From October 15 to December 14,  
2021, the testing protocol was that all staff, visitors and contractors who were  
not fully vaccinated were to be RAT tested w times weekly/day of, and staff  
and contractor who were fully vaccinated were to be RAT tested on a regular  
randomized basis. As of December 15, 2021 and ongoing, the testing protocol  
is that all staff, visitors, and contractors are to be RAT tested 3 times per week  
(48 hours between tests). Visitors and contractors must then wait in an area  
near the entrance for 15 minutes for negative test results before proceeding  
into the facility. Staff are allowed to proceed into the facility but must wait 15  
minutes for negative test results before engaging in direct resident care. Staff  
who have been approved to “test to work” as per government guidances. Test  
to work is explained in the Guidance documents attached at Tab 29.)  
Dec. 17 &  
24  
Revised Directive #3 issued for LTC Homes and Retirement Homes by CMOH.  
Dec. 17  
Dec. 27  
Dec. 31  
Revised Directive #5 issued for Hospitals and LTC Homes by CMOH.  
RHRA issued “Retirement Homes Policy to Implement Directive #3”.  
Revised Minister’s Directive for LTC Homes COVID19 Immunization Policy issued  
which required all LTC staff to be fully vaccinated with 3rd dose by January 28  
(for those eligible before January 1) and by March 14 (for those eligible only  
after January 1).  
8
Dec. 31  
Revera issued revised Policy (including all LTC Home and Retirement Home staff  
to receive 3rd dose).  
Starting  
week of  
Revera communicated the revised Policy requirements.  
Jan. 1, 2022  
Jan. 27  
Revised Minister’s Directive (moving back 3rd dose deadline from January 28tyh  
to March 14th).  
Feb. 7  
Revised COVID19 Guidances for LTC and RH issued  
Feb. 10  
Revera issued revised Policy (to reflect adjusted dates)  
8.  
At the hearing it was confirmed by the parties that combined LTC/RH facilities should,  
for the purposes of this Award, be considered to be LTCs as the set-up of the buildings meant  
that there was a shared physical environment that might allow transmission of COVID-19  
between staff and residents.  
THE PARTIES  
9.  
Revera Inc. is a multinational company based in Canada and currently owned by the  
Public Sector Pension Investment Board. Its many properties are focussed on providing  
accommodation and support to seniors through LTCs and RHs. Across Canada, Revera LTCs  
employ some 12,505 individuals while 6,546 employees are engaged at its RHs. On its website,  
the Employer states as follows:  
Why Revera?  
As a leading owner, operator and investor in the senior living sector, we understand how  
to create the best experience for people living in a Revera home. We believe everyone  
should have the opportunity to live a life of purpose, and we create environments that  
make that possible.  
Best in Class  
Together with our partners, we own and operate more than 500 properties across North  
America and the United Kingdom. We share best practices across our network to ensure  
we deliver the highest standards in seniors’ apartments, independent living, assisted  
living, memory care and long term care.  
10.  
The Christian Labour Association of Canada, is a trade union operating across Canada  
with a focus on representing employees in the construction, food service and healthcare  
9
sectors. Founded in 1952, the Union has some 60,000 members across all sectors and its  
philosophy is set out in its website as follows:  
We believe in cooperation, not confrontation. We work to make your workplace a better  
place – so that you and your coworkers can grow both as a workplace community and as  
individuals.  
In Ontario, the Union has a significant presence in the healthcare sector with a number of locals  
specializing in the representation of service workers. Under the Collective Agreements  
governing these parties, the Union holds bargaining rights for service workers in the  
classifications of Registered Practical Nurses (RPN), Personal Support Workers (PSW), Health  
Care Attendants (HCA), Resident Attendants (RA), Unregulated Health Care Providers (UCP)  
Activation Aides, Housekeeping Aides, Laundry Aides, Dietary Aides, Cooks and Maintenance  
employees. The vast majority of the employees in these classifications are engaged in providing  
support for the residents of the Employer’s facilities in their activities of daily living (ADL).  
While the extent of that support will necessarily depend on the physical and cognitive health of  
each resident, it is fair to say that most, if not all, of the Union’s members will have direct  
contact with residents in the course of performing their duties and responsibilities.  
THE COVID-19 PANDEMIC  
11.  
It is understandable that the parties did not provide any materials dealing with the  
general nature of the pandemic as it has been the subject of constant media reporting and has  
impacted the lives of all who may read this decision. Nevertheless, some brief background  
information will be helpful to put the evidence and submissions of the parties in context. The  
website of the World Health Organization (WHO) includes the following overview:  
Coronavirus disease (COVID-19) is an infectious disease caused by the SARS-CoV-2 virus.  
Most people infected with the virus will experience mild to moderate respiratory illness  
and recover without requiring special treatment. However, some will become seriously ill  
and require medical attention. Older people and those with underlying medical  
conditions like cardiovascular disease, diabetes, chronic respiratory disease, or cancer  
are more likely to develop serious illness. Anyone can get sick with COVID-19 and  
become seriously ill or die at any age.  
The best way to prevent and slow down transmission is to be well informed about the  
disease and how the virus spreads. Protect yourself and others from infection by staying  
at least 1 metre apart from others, wearing a properly fitted mask, and washing your  
10  
hands or using an alcohol-based rub frequently. Get vaccinated when it’s your turn and  
follow local guidance.  
The virus can spread from an infected person’s mouth or nose in small liquid particles  
when they cough, sneeze, speak, sing or breathe. These particles range from larger  
respiratory droplets to smaller aerosols. It is important to practice respiratory etiquette,  
for example by coughing into a flexed elbow, and to stay home and self-isolate until you  
recover if you feel unwell.  
(emphasis added)  
12.  
I take judicial notice that the first patient in Canada with COVID-19 was reported on  
January 25, 2020. The WHO declared COVID-19 to be a pandemic on March 11, 2020. There  
have been a number of variants of COVID-19 identified in Canada since the initial wave of the  
Alpha variant was diagnosed. These include the Beta variant on July 18, 2020, the Gamma  
variant on March 5, 2021, the Delta variant on July 23, 2021 and the Omicron variant on  
November 4, 2021. I also take judicial notice that at the times material to my determination:  
i)  
individuals living or working in congregant settings (such as LTCs and RHs) are more  
susceptible to contracting COVID-19; and  
ii)  
older individuals and those with underlying health conditions were more susceptible to  
the development of serious illness and/or death as a consequence of contracting COVID-  
19.  
I note that this statements are consistent with the Union’s observation in the Grievance:  
CLAC agrees that COVID-19 is a very serious and highly contagious disease that  
disproportionately affected residents in Long-Term Care Homes and in some cases  
retirement homes in Ontario.  
The date of the first vaccine approval in Canada was December 9, 2020 and, for the purposes of  
this Phase I decision, there has been no suggestion that approved vaccines have not been  
available to employees of the Employer at all times material to my determination.  
THE COLLECTIVE AGREEMENTS  
13.  
The Collective Agreement governing the parties in respect of Brierwood Gardens,  
Riverbend Place, Summit Place, Telfer Place and Trillium Court has a term running from August  
1, 2019 to July 31, 2022. Each of the named facilities is an LTC/RH. The following provisions are  
relevant:  
11  
ARTICLE 1 - PURPOSE  
1.01 It is the intent and purpose of the parties to this Collective Agreement, through the  
full and fair administration of all of the terms and provisions contained herein, to  
develop and maintain a relationship between the Union, the Employer and the  
employees which is conducive to their mutual well-being.  
1.02 The employees will endeavour to work together with the Employer to assure the  
best possible nursing and health care for the residents of the facility.  
1.03 It is the desire of both parties to recognize the mutual value of joint discussions and  
negotiations in all matters pertaining to working conditions, employment and services.  
2.06 Management Rights  
It is the right of the Employer to manage, control, develop and operate its facility  
covered under this Agreement in every respect subject only to the specific limitations set  
out in this Collective Agreement.  
2.07 The Union acknowledges that it is the exclusive function of management to:  
a.  
Plan, direct and control the operation of the facility, in accordance with its  
obligations, to introduce new therapeutic methods, and equipment, and to  
decide the location of equipment;  
b.  
Determine the amount of supervision, to establish the standards of performance  
of all employees, to combine or split departments, and to determine the number  
of employees. The Union reserves the right to request consultation when there  
are changes in staffing in the nursing facilities;  
c.  
To maintain order, discipline and efficiency, and to make and enforce  
reasonable rules to be observed by its employees, provided that they are not  
inconsistent with the provisions of this Agreement. Further, it is agreed that  
when making any new rules, regulations or altering past practices, the Employer  
will inform the Union stewards in ample time to enable the Union to make  
representations, if any, thereof;  
d.  
To select, hire, classify, transfer, promote, demote, assign, retire, layoff, recall,  
suspend and discharge employees for just cause, provided that a claim that any  
employee who has completed the probationary period has been disciplined or  
discharged unjustly may be the subject of a grievance, and dealt with in  
accordance with the grievance procedure.  
12  
2.08 The Union reserves the right to request consultation and/or clarification concerning  
any change which may occur which affects the employees under its jurisdiction, at a time  
mutually agreed to.  
ARTICLE 14 – SENIORITY  
14.04 Seniority status, once acquired, shall be lost and the employee shall be deemed  
terminated for the following reasons if an employee: …  
g.  
is absent from work without leave of absence being granted by or a satisfactory  
explanation being offered for an absence of three (3) working days; … or  
j.  
employees who are on a leave of absence and engage in gainful employment  
while on such leave are subject to dismissal unless otherwise agreed to by the  
Employer.  
ARTICLE 22 – LEAVES OF ABSENCE  
22.01 For Personal Reasons  
a.  
At the discretion of the Employer, an employee may be granted leave of absence  
without pay for personal reasons. Except in emergencies, written application for  
leave of absence must be made at least two (2) weeks in advance of such leave.  
When applying, the employee must indicate the date of departure and specify  
the date of return.  
b.  
c.  
The Employer will give a written reply to the request within one (1) week after he  
has received the request. If the request is denied, he shall state the reason in the  
reply. The Union shall receive a copy of the reply.  
An employee who overstays her authorized leave shall be considered to have  
terminated her employment without notice unless she provides an explanation  
satisfactory to the Employer.  
14.  
I was further provided with the Collective Agreements for the six stand-alone RHs. The  
Collective Agreement for Centennial Place RH runs from April 15, 2019 to April 14, 2023 and  
provides:  
ARTICLE 1 – PURPOSE  
1.01 … It is the purpose of both parties to this Agreement:  
13  
a.  
To maintain an orderly collective bargaining relationship between the Employer  
and its employees;  
b.  
c.  
d.  
To recognize the value of joint discussions and negotiations;  
To encourage efficiency in operations;  
To provide a mechanism for the amicable adjustment of grievances which may  
arise;  
e.  
To provide compassionate care for the residents to meet their physical and  
emotional needs in a safe, comfortable environment, treating them and their  
families with the respect and dignity they deserve.  
ARTICLE 3 – RECOGNITION OF MANAGEMENT RIGHTS  
3.01 The Union recognizes and acknowledges that all management rights and  
prerogatives and the direction of the working forces, and the management of the  
Employer’s enterprise, are vested exclusively with the Employer and without limiting the  
generality of the forgoing the exclusive functions of the Employer shall include the  
following:  
a.  
b.  
to operate and manage its business in every and all respects;  
to maintain order, discipline, efficiency amongst its employees and in connection  
therewith to establish and enforce reasonable rules, regulations, policies and  
practices from time to time; …..  
f.  
to establish standards of service; to amend or modify standards; to determine  
new methods to be used; to determine the requirements of a job and the  
qualifications of an employee to perform the work required.  
3.02 The Employer will exercise its management rights in accordance with the Collective  
Agreement.  
3.03 Failure by the Employer to exercise any of its management rights shall not be  
considered an abandonment of any such rights.  
ARTICLE 10 – SENIORITY  
10.07 Loss of Seniority  
14  
An employee shall lose all seniority and shall be deemed to have quit the employ of the  
Employer and employment of the employee shall be deemed to have been terminated  
without further notice for any of the following reasons: …..  
d.  
absence form work for three (3) consecutive working days without notifying the  
Employer, unless a reasonable explanation is provided to the Employer;  
ARTICLE 16 – LEAVE OF ABSENCE  
16.01  
a.  
The Employer may grant a request for a leave of absence without pay for  
personal reasons, provided the employer receives at least two (2) weeks notice in  
writing (except in case of emergency) and provided that such leave may be  
arranged without undue inconvenience to the normal operations. Applicants  
when applying must indicate the reason for the leave of absence, the date of  
departure and specify the date of return. The employer will reply to the request  
in writing. Such requests shall not be unreasonably denied.  
b.  
Employees who are on leave of absence will not engage in gainful employment  
while on such leave.  
If an employee does engage in gainful employment while on such leave of  
absence, he will forfeit all seniority rights and privileges contained in this  
Agreement and will be subject to discharge.  
ARTICLE 20 – HEALTH AND SAFETY  
20.07 Infectious Diseases  
The Employer and the Union desire to arrest the spread of infectious diseases in the  
Home.  
The Joint Occupational Health and Safety Committee shall be involved in all infection  
control programs and protocols including surveillance, outbreak control, isolation  
precautions, worker education and training, and personal protective equipment training.  
The Employer shall provide training and ongoing education in communicable disease  
recognition, use of personal protective equipment, decontamination of equipment, and  
disposal of hazardous waste.  
ARTICLE 29 – SUPERIOR CONDITIONS  
15  
29.01 Superior Conditions in place at the facility shall be maintained.  
15.  
The Collective Agreement covering Beechwood Place RH runs from January 1, 2019 until  
December 31, 2022 and provides:  
ARTICLE 1 – PURPOSE  
1.02 If this Agreement is silent on any existing rights and privileges, this shall not mean  
that either the Employer or the employees are deprived of such rights or privileges.  
ARTICLE 2 - RECOGNITION  
2.04 Management Rights  
The Union recognizes that it is the right of the Employer to manage the facility and to:  
e.  
make, enforce, and alter from time to time reasonable rules and regulations to  
be observed by the employees. No rules shall be introduced without prior  
consultation with the Union;  
ARTICLE 12 – SENIORITY  
12.03 Loss of Seniority  
An employee’s seniority rights shall cease to exist and the employee shall be deemed to  
have terminated employment if an employee: …..  
c.  
fails to report on the first day following the expiration of a leave of absence,  
unless a justifiable reason is given promptly; …..  
e.  
has been absent for two (2) consecutive working days without having notified  
the Employer, unless a justifiable reason is given promptly;  
ARTICLE 16 – LEAVES OF ABSENCE  
16.01  
a.  
An employee who has completed probation shall be entitled to a leave of  
absence without pay and without loss of seniority when the employee requests  
it for good and sufficient reasons. A request for a leave of absence shall not be  
unreasonably denied.  
16  
b.  
An employee who wishes to have a leave of absence shall, except in cases of  
emergency, state her request in writing four (4) weeks prior to the  
commencement of the requested leave of absence to her supervisor. The  
request shall include the commencement date of the requested leave of  
absence, the return date to work and the reason for the request. Leaves of  
absence will not be granted to probationary employees.  
16.02 Employees who are on leave of absence will not engage in gainful employment  
elsewhere without agreement of the Employer. An employee who violates this rule will  
forfeit all seniority rights, and may be dismissed by the Employer.  
16.  
The Collective Agreement governing King Gardens RH runs from June 1, 2018 to May  
31, 2022 and provides:  
ARTICLE 1 – GENERAL PURPOSE  
1.01 The purpose of this Agreement is to establish and maintain bargaining relations  
between the Employer and those of its staff at its King Gardens, Ontario for whom the  
Union is the bargaining agent as set out in Article 2 of this Agreement. It is the desire of  
the parties hereto to co-operate and harmoniously work together in the promotion of  
the highest standard of care for the residents in the Retirement Residences.  
ARTICLE 7 – MANAGEMENT RIGHTS  
7.01 The Union acknowledges that it is the exclusive function of the Employer:  
1.  
To determine and establish standards and procedures for the care, Welfare,  
safety and comfort of the residents in the Residence, and to maintain order,  
discipline and efficiency and in connection therewith to establish and enforce  
rules and regulations, policies and practices from time to time to be observed by  
its employees and to alter such rules and regulations provided that such rules and  
regulations shall not be inconsistent with the provisions of this Agreement. It is  
agreed that such rules will be communicated and a copy supplied to the Union.  
…..  
4.  
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.  
7.02 It is agreed and understood that these rights shall not be exercised in a manner  
inconsistent with the terms of this Agreement; a claim that the Employer has so  
exercised these rights shall be the proper subject matter of a grievance.  
17  
ARTICLE 11 – SENIORITY  
11.03 An employee shall lose all seniority and shall be deemed to have quit the employ  
of the Retirement Residence if he or she: …..  
c.  
is absent for three (3) consecutive working days without notifying the Employer  
unless a reason satisfactory to the Employer is given and such employee shall be  
deemed to have quit the employ of the Employer without notice;  
ARTICLE 22 – LEAVE OF ABSENCE  
22.06 General Leave  
Subject to the normal operation of the Retirement Residence the Employer may grant  
leave of absence without pay for up to three (3) months in any twelve (12) month period  
on the written request of an employee provided the reasons stated in the application are  
reasonable. Such things as illness or accident in the immediate family or for personal  
reasons resulting from death in the immediate family would be considered as being  
reasonable. An application may be submitted only by employees with six (6) months or  
more seniority. If leave of absence is granted, the employee shall be advised in writing  
with a copy to the Union. …..  
22.07 Employees who are on a leave of absence will not engage in gainful employment  
elsewhere without agreement of the Employer. An employee who violates this rule will  
forfeit all seniority rights, and may be dismissed by the Employer.  
ARTICLE 24 – HEALTH AND SAFETY COMMITTEE  
24.01 The Employer ant the Union agree that they mutually desire to maintain  
standards of safety and health in the home, in order to prevent injury and illness. …..  
24.06 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.  
17.  
I was provided with a draft Collective Agreement for Maplecrest RH running from  
November 1, 2016 to October 31, 2019. In the circumstances I am setting out the provisions  
from that draft document that would be relevant in this proceeding as follow:  
ARTICLE 1 – PURPOSE  
18  
1.01 The parties to this Agreement desire to foster and maintain a relationship among  
the Employer, the Union, and the employees which is in every respect conducive to their  
mutual well-being. The parties hereby pledge to fairly administer this Agreement as one  
means by which that purpose can be achieved.  
ARTICLE 3 – MANAGEMENT RIGHTS  
3.01 The Union acknowledges that all management rights and prerogatives are vested  
exclusively with the Employer, and without limiting the generality of the foregoing, it is  
the exclusive function of the Employer:  
a.  
To maintain order, discipline and efficiency, to decide on the number of  
employees needed by the Employer at any time; and to establish and enforce  
reasonable rules and regulations governing the conduct of employees, where  
such rules will be posted on the Employee Bulletin Board with copies supplied to  
the Union Committee. The Employer reserves the right to amend or introduce  
new rules from time to time, copies of which are to be posted on the Bulletin  
Board with copies supplied to the local Union Office. The local Union shall have  
the right to make representation before any rule is amended or any rule is  
introduced. Where possible, the Union will be notified twenty four (24) hours in  
advance of the introduction of a new policy. …..  
These rights will not be performed in a manner inconsistent with the terms of this  
Agreement. A claim that the Employer has so exercised these rights may be the matter  
of a grievance.  
3.02 The Employer shall endeavour to inform the Union and CLAC Representative as  
soon as possible in advance of all planned significant changes in work methods,  
supervision, number of personnel employed, layoffs, staff orientation program and the  
like and to give full consideration to any representations made by the committee, prior  
to implementing such changes.  
ARTICLE 5 – UNION REPRESENTATION  
5.03 Labour/Management Committee …..  
e.  
The parties commit themselves to these procedures [those governing the  
Labour/Management Committee] in recognition of their joint responsibility and  
mutual desire to give the best possible care to the residents entrusted to them.  
The parties declare that in all instances and circumstances they commit  
themselves to the best of their ability to the happiness, security and physical and  
emotional well-being of the residents.  
19  
ARTICLE 7 – SENIORITY  
7.03 An employee’s seniority rights once acquired shall cease to exist and the employee  
shall be deemed to be terminated if an employee: …..  
c.  
utilizes a leave of absence for purposes other than those for which the leave was  
granted, or engages in gainful employment elsewhere while on the leave of  
absence, or who fails to report for duty on the first (1st) day following the  
expiration of a leave of absence, unless the employee has obtained permission  
for the Employer in writing or provides a reasonable explanation satisfactory to  
the Employer.  
e.  
has been absent for tow (2) consecutive working days without having notified the  
Employer, in which case the employee shall be deemed to have quit without  
notice, unless a reason satisfactory to the Employer is given.  
ARTICLE 17 - LEAVES OF ABSENCE  
17.01 The Employer shall grant or deny a leave of absence without pay provided that the  
Employer receives at least four (4) weeks advance notice in writing (except in emergency  
situations) and that such leave may be arranged without undue inconvenience to the  
normal operations of the Home. When applying for a leave of absence, the employee  
must notify the Employer of the date of departure and the date of return. The  
employee's request for a leave of absence and the Employer's response to the request  
shall be in writing within two (2) weeks of receiving the request. The granting of a leave  
of absence shall be at the discretion of the Employer, but this discretion shall not be  
unreasonably exercised.  
17.02 Employees who are on leave of absence will not engage in gainful employment  
elsewhere. An employee who violates this rule may be dismissed by the Employer. …..  
17.04 To qualify for leave of absence as stipulated above the employee must have  
completed one (1) year of employment with the Employer. …..  
17.07 Requests for leaves of absence shall be for good and sufficient reasons.  
17.08 No leaves shall be granted if they cause undue inconvenience to the normal  
requirements of the company.  
ARTICLE 29 – HEALTH AND SAFETY COMMITTEE  
29.01 The Employer and the Union agree that they mutually agree to maintain  
standards of safety and health in the facility in order to prevent injury and illness.  
20  
18.  
The Collective Agreement governing the parties at Lynwood Park RH has a term running  
from April 1, 2017 until March 31. 2020. Its terms and conditions include the following  
provisions:  
ARTICLE 1 - PURPOSE  
1.01 The parties to this Agreement desire to foster and maintain a relationship among  
the Employer, the Union, and the employees, which is in every respect conducive to their  
mutual well being. The parties hereby pledge to fairly administer this Agreement as one  
means by which that purpose can be achieved.  
1.02 If this Agreement is silent on any existing rights and privileges, this shall not mean  
that either the Employer or the employees are deprived of such rights or privileges.  
1.03 The parties recognize that where legislation overrides the provisions contained in  
this Agreement, such legislation shall prevail. This shall include but not be limited to such  
statutes as the Ontario Human Rights Code (OHRC) and the Employment Standards Act  
(ESA).  
ARTICLE 2 – RECOGNITION  
2.05 The Union recognizes that it is the responsibility of the Employer to manage the  
home and, without limiting any provision within this Agreement, to:  
a. maintain order, discipline and efficiency; …..  
e. make, enforce, and alter from time to time reasonable rules and regulations to be  
observed by the employees. No rules shall be introduced without prior consultation with  
the Union. The Union will be advised of any new rules that will affect the employees;  
ARTICLE 3 – REPRESENTATION  
3.08 The parties agree to establish an active labour-management committee: …..  
i.  
The parties commit themselves to these procedures [those governing the  
labour-management committee] in recognition of their joint responsibility and  
mutual desire to give the best possible care to the residents entrusted to them.  
The parties declare that in all instances and circumstances they commit  
themselves to the best of their ability to the happiness, security and physical and  
emotional well-being of the residents.  
ARTICLE 12 – SENIORITY & LAYOFFS  
21  
12.03 An employee’s seniority rights shall cease to exist and employment shall be  
deemed terminated if an employee: …..  
c.  
fails to report on the first day following the expiration of a leave of absence,  
unless a justifiable reason is given; …..  
e.  
has been absent for three (3) consecutive working days without having notified  
the Employer, unless a justifiable reason is given;  
ARTICLE 18 - LEAVES OF ABSENCE  
18.01 Personal  
An employee who has completed six (6) months of service may be entitled to a leave of  
absence of up to two (2) months in duration, without pay and without loss of seniority.  
The Employer has the right to refuse should such request disrupt the normal operations  
of the Community. Requests shall not be unreasonably denied.  
18.02 A request for a leave of absence shall, except in cases of emergency, be submitted  
in writing to the supervisor four (4) weeks prior to the commencement of the requested  
leave of absence. The request shall include the commencement date of the requested  
leave of absence, the return date to work and the reason for the request. The Supervisor  
will follow up in writing to the employee within two (2) weeks informing them if the  
request was approved.  
18.03 An employee shall forfeit all seniority rights, and may be dismissed by the  
Employer, if she utilizes a leave of absence for purposes other than those for which the  
leave was granted or engages in gainful employment elsewhere while on leave of  
absence, or who fails to report for duty on the first day following the expiration of a  
leave of absence unless the employee has obtained permission from the Employer in  
writing or provides a reasonable explanation satisfactory to the Employer.  
19.  
The Collective Agreement provided in respect of Greenway RH has a term running from  
November 30, 2015 until November 29, 2019 and includes the following terms and conditions:  
ARTICLE 1 – PURPOSE  
1.01 Whereas it is the desire of both parties to this Agreement:  
a) To maintain and improve the harmonious relations and settle conditions of  
employment between the Employer and the Union.  
b) To recognize the mutual value of joint discussions and negotiations in all  
matters pertaining to working conditions.  
22  
c) To promote the morale, well being and security of all the Employees in the  
bargaining unit of the Union.  
d) To provide compassionate care and emotional needs in a safe, comfortable  
environment treating them and their families with respect and dignity they  
deserve.  
e) To encourage efficiency in operation.  
ARTICLE 3 – MANAGEMENT RIGHTS  
3.01 Except where specifically modified by the terms of this Agreement, the Union  
acknowledges that all Management rights are vested exclusively with the Employer. The  
Employer has the exclusive right to manage and direct its operations and affairs in all  
respects. These rights and functions shall include, but are not limited to:  
a) to determine and establish standards and procedures for the service, care, welfare,  
safety and comfort of the clients of the Employer,  
b) To maintain order, discipline and efficiency, and to make, alter, and enforce  
reasonable rules and regulations to be observed by employees. …..  
e) The Employer agrees not to exercise its rights in an unreasonable or discriminatory  
manner.  
ARTICLE 10 – UNION REPRESENTATION  
10.08 Joint Health and Safety Committee  
a) The Employer and Union agree that they mutually desire to maintain standard  
of safety and health in the Residence in order to prevent accidents, injury  
and illness, and abide by the Occupational Health and Safety Act as amended  
from time to time.  
ARTICLE 14 – SENIORITY, LAY OFF, PROBATION AND ORIENTATION  
14.05 An employee shall lose seniority and shall cease employment for the following  
reasons:  
d) is absent from work for a period three (3) scheduled shifts without notifying the  
Employer, unless a reasonable explanation is provided to the Employer: …..  
g) engages in gainful employment without the authorization while on an approved leave  
of absence; (sic)  
ARTICLE 22 – LEAVE OF ABSENCE AND BEREAVEMENT LEAVE  
23  
22.01 The Employer may grant a request for a leave of absence without pay for  
extenuating personal reasons, provided that he receives at least one month's notice in  
writing, unless impossible, and that such leave may be arranged without undue  
inconvenience to the normal operations of the Residence. Applicants when applying  
must indicate the date of departure and specify the date of return. If a leave of absence  
is granted, the Employee shall be advised in writing with a copy given to the Union.  
To qualify for leaves of absence as stipulated above the Employee must have completed  
six (6) months of employment with the Employer and it is expressly understood no  
benefit except as hereinafter provided shall accrue to or be paid to any Employee on a  
leave of absence.  
22.02  
c) An Employee on a leave of absence will not engage in other work without the  
permission of the Employer. An employee who violates this provision will forfeit all  
seniority rights and will be deemed terminated.  
ARTICLE 27 – HEALTH AND SAFETY  
27.01 The Employer and Union agree that they mutually desire to maintain standard of  
safety and health in the Residence in order to prevent accidents, injury and illness, and  
abide by the Occupational Health and Safety Act as amended from time to time.  
STATUTORY FRAMEWORK  
20.  
Section 25(2) Ontario’s Occupational Health and Safety Act (“OHSA”) provides:  
Duties of employers  
(2) Without limiting the strict duty imposed by subsection (1), an employer shall,  
(a)  
provide information, instruction and supervision to a worker to protect the  
health or safety of the worker; …..  
(h)  
take every precaution reasonable in the circumstances for the protection of a  
worker;  
21.  
Ontario’s Long-Term Care Homes Act, 2007 (“the LTCHA”) includes the following  
provisions:  
Preamble  
24  
The people of Ontario and their Government:  
Believe in resident-centred care;  
Remain committed to the health and well-being of Ontarians living in long-term care  
homes now and in the future; …..  
Recognize the responsibility to take action where standards or requirements under this  
Act are not being met, or where the care, safety, security and rights of residents might  
be compromised;  
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;  
Home: the fundamental principle  
1 The fundamental principle to be applied in the interpretation of this Act and anything  
required or permitted under this Act 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.  
Residents’ Bill of Rights  
3 (1) Every licensee of a long-term care home shall ensure that the following rights of  
residents are fully respected and promoted:  
1. Every resident has the right to be treated with courtesy and respect and in a way that  
fully recognizes the resident’s individuality and respects the resident’s dignity.  
2. Every resident has the right to be protected from abuse.  
3. Every resident has the right not to be neglected by the licensee or staff.  
4. Every resident has the right to be properly sheltered, fed, clothed, groomed and cared  
for in a manner consistent with his or her needs.  
5. Every resident has the right to live in a safe and clean environment. …..  
12. Every resident has the right to receive care and assistance towards independence  
based on a restorative care philosophy to maximize independence to the greatest extent  
possible. …..  
25  
Further guide to interpretation  
(2) Without restricting the generality of the fundamental principle, the following are to  
be interpreted so as to advance the objective that a resident’s rights set out in  
subsection (1) are respected:  
1. This Act and the regulations.  
2. Any agreement entered into between a licensee and the Crown or an agent of the  
Crown.  
3. Any agreement entered into between a licensee and a resident or the resident’s  
substitute decision-maker.  
Enforcement by the resident  
(3) A resident may enforce the Residents’ Bill of Rights against the licensee as though the  
resident and the licensee had entered into a contract under which the licensee had  
agreed to fully respect and promote all of the rights set out in the Residents’ Bill of  
Rights.  
Home to be safe, secure environment  
5 Every licensee of a long-term care home shall ensure that the home is a safe and  
secure environment for its residents.  
Infection prevention and control program  
86 (1) Every licensee of a long-term care home shall ensure that there is an infection  
prevention and control program for the home.  
Requirements of the program  
(2) The infection prevention and control program must include,  
(a) daily moitoring to detect the presence of infection in residents of the long-  
term care home; and  
(b) measures to prevent the transmission of infections.  
174.1 (1) The Minister may issue operational or policy directives respecting long-term  
care homes where the Minister considers it to be in the public interest to do so.  
22.  
Section 229(10) of Regulation 79/10 under the LTCHA provides as follows:  
26  
Infection prevention and control program  
229. (1) Every licensee of a long-term care home shall ensure that the infection  
prevention and control program required under subsection 86(1) of the Act complies  
with the requirements of this section. …..  
(10) The licensee shall ensure that the following immunization and screening measures  
are in place:  
4. Staff is screened for tuberculosis and other infectious diseases in accordance  
with evidence-based practices and, if there are none, in accordance with  
prevailing practices.  
5. There must be a staff immunization program in accordance with evidence-  
based practices and, if there are none, in accordance with prevailing practices.  
23.  
The Retirement Homes Act, 2010 (“the RHA”) includes the following provisions:  
Fundamental principle  
1 The fundamental principle to be applied in the interpretation of this Act and any  
regulation, order or other document made under this Act is that a retirement home is to  
be operated so that it is a place where residents live with dignity, respect, privacy and  
autonomy, in security, safety and comfort and can make informed choices about their  
care options.  
Residents’ Bill of Rights  
51 (1) Every resident of a retirement home has the following rights which constitute the  
Residents’ Bill of Rights: …..  
4. The right to have his or her choice of care services provided by staff who are suitably  
qualified and trained to provide the services. …..  
8. The right to live in a safe and clean environment where he or she is treated with  
courtesy and respect and in a way that fully recognizes the resident’s individuality and  
respects the resident’s dignity. …..  
Licensee’s obligations  
(2) Every licensee of a retirement home shall ensure that the rights set out in the  
Residents’ Bill of Rights are fully respected and promoted in the home in accordance  
with the regulations, if any.  
27  
Standards  
60 (1) Every licensee of a retirement home shall ensure that the care services that the  
licensee and the staff of the home provide to the residents of the home meet the  
prescribed care standards. …..  
Safety standards  
(3) Every licensee of a retirement home shall comply with all prescribed safety standards  
for the home, including standards with respect to fire, safety and public health  
requirements and emergency evacuation plans.  
Safety plans  
(4) Every licensee of a retirement home shall ensure that the following are in place for  
the home: …..  
2. An infection prevention and control program that meets the prescribed requirements.  
24.  
Section 27 of Regulation 166/11 under the RHA sets out the following requirements for  
the Infection Prevention and Control program referenced immediately above:  
Infection prevention and control program  
27. (1) Every licensee of a retirement home shall ensure that the infection prevention and  
control program required by paragraph 2 of subsection 60(4) of the Act complies with  
the requirements in this section. …..  
(5) The licensee of a retirement home shall ensure that,  
(0.a) any guidance, advice or recommendations given to retirement homes by the Chief  
Medical Officer of Health are followed in the retirement home;  
(0.b) all reasonable steps are taken in the retirement home to follow,  
(i) any directive respecting coronavirus (COVID-19) issued to long-term care  
homes by the Chief Medical Officer of Health under section 77.7 of the Health  
Protection and Promotion Act;  
(ii) any guidance, advice or recommendations respecting coronavirus (COVID-19)  
that are given to long-term care homes by the Chief Medical Officer of Health  
and made available on the Government of Ontario’s website respecting  
coronavirus (COVID-19);  
28  
(8) The licensee of a retirement home shall ensure that, …..  
(c) each member of the staff has been screened for tuberculosis and all other infectious  
diseases that are appropriate in accordance with evidence-based practices or, if there  
are no such practices, in accordance with prevailing practices; and …..  
25.  
To close the circle on legislation set out in the preceding paragraph, section 77.7 of the  
Health Protection and Promotion Act (HPPA) referenced in section 27(5)(0.b)(i) of Regulation  
166/11 under the RHA provides as follows:  
Directives to health care providers  
77.7 (1) Where the Chief Medical Officer of Health is of the opinion that there exists or  
there may exist an immediate risk to the health of persons anywhere in Ontario, he or  
she may issue a directive to any health care provider or health care entity respecting  
precautions and procedures to be followed to protect the health of persons anywhere in  
Ontario.  
Precautionary principle  
(2) In issuing a directive under subsection (1), the Chief Medical Officer of Health shall  
consider the precautionary principle where,  
(a) in the opinion of the Chief Medical Officer of Health there exists or may exist an  
outbreak of an infectious or communicable disease; and  
(b) the proposed directive relates to worker health and safety in the use of any  
protective clothing, equipment or device. .  
Must comply  
(3) A health care provider or health care entity that is served with a directive under  
subsection (1) shall comply with it.  
Definitions  
(6) In this section,  
“health care provider or health care entity” means: …..  
10. A long-term care home under the Long-Term Care Homes Act, 2007.  
26.  
One of the purposes of the RHA includes the establishment of the Retirement Homes  
Regulatory Authority (RHRA), the objects of which are set out in the RHA as follow:  
29  
Objects  
16 The objects of the Authority are,  
(a) to administer this Act and the regulations, including overseeing their enforcement,  
for the purpose of ensuring that retirement homes are operated in accordance with this  
Act and the regulations;  
(b) to educate licensees, consumers and the public about matters relating to this Act  
and the regulations, including the requirements applicable to licensees, the prescribed  
care and safety standards for retirement homes, the rights of residents and best  
practices for the operation of retirement homes;  
(c) to provide information about retirement homes;  
(d) to advise the Minister on policy matters relating to retirement homes;  
(d.1) to suggest to the Minister amendments to Ontario legislation that it considers  
would further the purposes of this Act or would assist the Authority in administering the  
Act and the regulations; and  
(e) to carry out any other duties or powers assigned to it under any Act or by the  
Minister.  
Powers  
17 The Authority has the capacity and the rights, powers and privileges of a natural  
person, except as limited by this Act or the regulations.  
GOVERNMENT MANDATES RE: COVID-19  
27.  
As set out in paragraph 25, above, the HPPA grants the Chief Medical Officer of Health  
(CMOH) in Ontario the power to “… issue a directive to any health care provider or health care  
entity respecting precautions and procedures to be followed to protect the health of persons  
anywhere in Ontario” in cases where the CMOH “… is of the opinion that there exists or there  
may exist an immediate risk to the health of persons anywhere in Ontario”. Suffice it to say,  
the CMOH considered the COVID-19 pandemic to constitute such a risk. Accordingly, the  
CMOH issued a number of Directives for various health care providers and institutions in  
Ontario. The Directive applicable to long-term care facilities is identified as Directive #3 and it  
has been revised a number of times since its initial issuance.  
28.  
Further, as set out in section 174.1(1) of the LTCHA at paragraph 21 above, “The  
Minister may issue operational or policy directives respecting long-term care homes where the  
30  
Minister considers it to be in the public interest to do so.” On October 1, 2021, a Minister’s  
Directive was issued to long-term care homes with a new requirement requiring staff to be fully  
vaccinated to be a condition of attending in the workplace, as reflected in the statement  
provided by the Associate Deputy Minister of Health, Erin Hannah, as follows:  
Mandatory vaccination in all long-term care homes  
Effective today (October 1), the Minister of Long-Term Care has issued a revised  
Minister’s Directive: Long-Term Care Home COVID-19 Immunization Policy. Per the  
revised Directive, every licensee must ensure that all staff, support workers, students,  
and volunteers provide proof of vaccination against COVID-19 or a valid medical  
exemption. Existing staff, students and volunteers, as well as support workers who  
currently attend the home, must provide this proof by November 15, 2021. Effective  
immediately, any new staff, support workers, students or volunteers must provide it  
before they begin working, undertaking their placement or volunteering in the home.  
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)  
In turn, the content of the Minister’s Directive was incorporated into the COVID-19 Guidance  
Document for LTC’s published by the Ministry of Long-Term Care (MLTC) at or about the same  
date as the Minister’s Directive was issued. Subsequent iterations of Minister’s Directives are  
similarly incorporated into the MLTC’s COVID-19 Guidance Documents.  
29.  
In each of its iterations, Directive #3 states at all times relevant to this Grievance:  
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. As the COVID-  
19 situation evolves, there will be continual review of emerging evidence to understand  
the most appropriate measures to take. This will continue to be done in collaboration  
with health sector partners and technical experts from Public Health Ontario (PHO) and  
with the health system.  
To that end, this Directive provides the minimum requirements with respect to COVID-  
19 infection and prevention control measures that must be in place for all LTCHs and  
31  
RHs. This includes having in place policies and procedures on the following topics in a  
manner that is compliant with this Directive and applicable policies, as amended from  
time to time, from the Office of the Chief Medical Officer of Health, the Ministry of Long-  
Term Care (MLTC), the Retirement Homes Regulatory Authority (RHRA), and the Ministry  
for Seniors and Accessibility (MSAA).  
Detailed information on each of the topics below, including guidance on  
operationalization of these core principles, can be found in sector-specific documents:  
Long-term care homes must follow MLTC’s COVID-19 Guidance Document for  
Long- Term Care Homes in Ontario, effective [insert applicable date] or as  
current. .  
Retirement homes must follow RHRA’s Retirement Homes Policy to Implement  
Directive #3, [insert applicable date] or as current.  
(emphasis in original)  
30.  
The Minister of Long-Term Care issued a further Directive dated December 31, 2021  
requiring that employees of LTCs obtain a “booster” or 3rd vaccination shot in accordance with  
the following provision:  
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.  
Subsequently, the Minister issued a further Directive extending the deadline for all LTC staff to  
receive their booster to March 14, 2022. The CMOH issued an updated Directive #3 requiring  
that LTC’s must follow the Minister’s Directive in each case consistent with the language set out  
in paragraph 29, above.  
THE POLICIES  
31.  
On May 31, 2021 a Minister’s Directive was issued through the Ministry of Long-Term  
Care requiring that all LTCs in the Province have in place an immunization policy by July 1, 2021.  
32  
In a Memorandum issued by the Ministry’s Associate Deputy Minister, Erin Hannah,  
summarizing the Directive, it states:  
At a minimum, the policy must require staff, student placements and volunteers to do one of  
three things:  
1. Provide proof of vaccination against COVID-19; or  
2. Provide a documented medical reason for not being vaccinated against COVID-19; or  
3. Participate in an educational program approved by the licensee.  
(emphasis in original)  
32.  
By email dated June 8, 2021, the Union was provided with a copy of the Employer’s  
Policy promulgated in compliance with the Minister’s Directive set out above. The Provincial  
Director for the Union replied on June 17, 2021 acknowledging receipt of the Policy and stating  
that they would be shared with each of its representatives working at the Employer’s facilities.  
The Policy was not the subject of a grievance.  
33.  
The Employer’s Policy effective as of July 1, 2021 (“the Original Policy”) stated, in part,  
as follows:  
POLICY  
COVID-19 is a very serious and highly contagious disease that has killed millions of  
people worldwide and has caused a variety of other serious health problems (short of  
death) for hundreds of thousands of other people.  
Everyone at Revera shares a common mission and desire to do everything reasonably  
possible to protect residents as well as staff from getting COVID-19. WE ARE ALL IN THIS  
TOGETHER. We know that seniors have been disproportionately impacted by COVID-19.  
Sadly, we have had residents die and suffer other serious outcomes as a result of COVID-  
19. Regrettably, we have also had fellow staff members suffer serious outcomes. Each of  
us needs to do our part in helping to prevent further spread of this horrible disease.  
IT IS REVERA’S EXPECTATION AND SINCERE HOPE THAT ALL STAFF WILL BE VACCINATED  
(subject only to legitimate established exceptions of a medical nature). WE MUST DO  
EVERYTHING IN OUR POWER TO HELP FIGHT COVID-19 AND KEEP EVERYONE SAFE.  
While it is the expectation that all staff will voluntarily get vaccinated, Revera respects  
the decision of those staff members who decide not to get vaccinated. However, in order  
to protect its residents and other staff, Revera will be implementing the following  
measures for those who are not vaccinated to:  
33  
1. provide a documented medical reason as to why they cannot be vaccinated or  
participate in an educational session regarding the benefits of vaccination and the risks  
of not getting vaccinated, and  
2. participate in daily rapid antigen surveillance testing, and  
3. continue to adhere to PPE requirements, even after these are no longer mandated by  
public health or provincial health ministries.  
(emphasis in original)  
The Original Policy then went on to put in place procedures to facilitate compliance with the  
terms set out above.  
34.  
On August 26, 2021 the Employer was party to a news release that stated as follows:  
A coalition of national seniors’ living operators, led by Chartwell, Extendicare, Responsive  
Group, Revera and Sienna, announced today that they are making COVID-19 vaccination  
mandatory for their long-term care and retirement home staff across Canada.  
“The fourth wave of COVID-19 is here, with cases rising across the country. Variants of  
the virus, such as Delta and other evolving variants like Lambda, are highly transmissible  
and continue to pose significant risk to seniors, people with health issues and those who  
have not yet been fully vaccinated.  
Together, Canada’s largest seniors’ care providers are doing everything we can to  
remain vigilant and protect the vulnerable populations in our care from the virus.  
Frontline staff at each organization have demonstrated an enthusiastic response to our  
voluntary vaccination programs. We thank them for their commitment, but we need to  
do more.  
As of October 12, 2021, staff who are not fully vaccinated will be placed on an unpaid  
leave of absence. Full vaccination is also required for all new hires, students and agency  
personnel, across each organization. The new vaccination policy will enhance protection  
against the virus for the people we care for and team members who deliver that care, as  
well as essential caregivers and visiting family members.  
Vaccinations are safe, highly effective and significantly reduce the risk of serious illness  
and hospitalization. Each operator has removed barriers to vaccination and continues to  
provide supports to their frontline staff including education, appointment booking and  
paid time for vaccination, resulting in already high staff vaccination rates that continue  
to rise each week. IN light of this, we do not expect any impact on staffing levels. We  
are optimistic our staff will continue to act in the best interest of our communities and  
will work to achieve full vaccination across our homes.  
34  
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.  
Throughout the pandemic, the dedication of our frontline staff has not wavered. We  
applaud frontline heroes across the country and, together, we call on all health care  
leaders to take up this challenge with their own teams, o support us in our work to build  
a fully vaccinated health-care workforce across Canada.”  
35.  
On August 26, 2021, the same day as the press release in the preceding paragraph was  
issued, the Employer communicated “… to CLAC and staff…” the revisions to its Policy (“the  
August 26 Policy”) that include the following:  
IT IS REVERA’S REQUIREMENT THAT ALL STAFF BE VACCINATED (subject only to  
legitimate established exceptions of a medical nature or there is a valid human rights  
exception).  
WE MUST DO EVERYTHING IN OUR POWER TO HELP FIGHT COVID-19 AND KEEP  
EVERYONE SAFE.  
For those who are not vaccinated at our Homes and Residences:  
1. agree in writing that they will receive their first and/or second dose by a mutually  
agreed upon date or provide a documented medical reason as to why they cannot be  
vaccinated; and  
2. wear appropriate PPE (e.g. applicable PPE, including masks and face shields) even  
after such precautions are no longer mandated by applicable public health authorities;  
and  
3. submit to daily rapid antigen COVID-19 testing, again, even after such testing is no  
longer mandated by applicable public health authorities.  
Refusal to adhere with any of these measures outlined above will result in being placed  
on an unpaid leave.  
(emphasis in original)  
36.  
Subsequent to the Employer’s issuance of the August 26 Policy set out in the preceding  
paragraph, Ontario’s Chief Medical Officer of Health (CMOH) sent out Instructions to RHs on  
September 7, 2021 that stated as follows:  
35  
AND WHEREAS:  
• some retirement home staff within the meaning of the Retirement Homes Act,  
2010, contractors, volunteers, and students remain unvaccinated, posing risks  
to residents;  
• due to age-related conditions and co-morbidities, retirement home residents  
face higher risk of serious illness and death due to COVID-19; and  
• vaccines provide the best protection against COVID-19.  
AND HAVING REGARD TO the prevalence of the Delta variant of concern globally and  
within Ontario, which has increased transmissibility and disease severity than previous  
COVID-19 virus strains, in addition to the declaration by the World Health Organization  
(WHO) on March 11, 2020 that COVID-19 is a pandemic virus and the spread of  
COVID-19 in Ontario.  
I AM THEREFORE OF THE OPINION that instructions from the OCMOH must be  
issued to establish mandatory COVID-19 vaccination policies in retirement homes within  
the meaning of the Retirement Homes Act, 2010 that are licenced under the Act.  
Date of Issuance: August 30, 2021  
Effective Date: Every Retirement Home (as defined below) must establish a COVID-19  
vaccination policy by no later than September 7, 2021 and implement it by no later  
than September 21, 2021.  
Issued To: Retirement homes within the meaning of the Retirement Homes Act, 2010  
that are licenced under the Act (herein referred to as “Retirement Home”).  
On September 16, 2021, the RHRA then issued a Guidance document confirming the  
requirement set out in the CMOH Instruction.  
37.  
On September 29, 2021, the Employer “…communicated to CLAC and staff…” further  
revisions to its Policy dated September 28, 2021 (“the September 28 Policy”), the material  
changes reading as follow:  
IT IS REVERA’S REQUIREMENT THAT ALL STAFF BE VACCINATED (subject only to  
legitimate established exceptions of a medical nature or there is a valid human rights  
exception). WE MUST DO EVERYTHING IN OUR POWER TO HELP FIGHT COVID-19 AND  
KEEP EVERYONE SAFE.  
For those who are not vaccinated at our Homes and Residences:  
36  
1. agree in writing that they will receive their first and/or second dose by a mutually  
agreed upon date or provide a documented medical reason as to why they cannot be  
vaccinated; and  
2. wear appropriate PPE (e.g. applicable PPE, including masks and face shields) even  
after such precautions are no longer mandated by applicable public health authorities;  
and  
3. submit to daily rapid antigen COVID-19 testing, again, even after such testing is no  
longer mandated by applicable public health authorities.  
Refusal to adhere with any of these measures outlined above will result in being placed  
on an unpaid leave until they comply; or their employment is terminated.  
(emphasis in original)  
Under the Procedures section of the September 28 Policy, employees who were not vaccinated  
and were not subject to a human rights or medical exemption, had to be fully vaccinated by  
October 12, 2021 unless they elected to be vaccinated by an agreed upon date. Failure to meet  
any of those conditions would result in the employee being “…placed on an unpaid leave until  
they comply, or their employment is terminated”.  
38.  
It will be recalled that a Minister’s Directive requiring mandatory vaccinations for LTC  
staff was issued a few days later on October 1, 2021.  
39.  
On December 31, 2021, a Minister’s Directive was issued requiring that all LTC staff  
(other than those who were medically exempted) receive a third dose of the COVID-19 vaccine  
by January 28, 2022 in order to be considered “fully vaccinated” and, therefore, permitted to  
attend work. On that same date, the Employer issued further revisions to its Policy (“the  
December 31 Policy”) as set out in the ASF stating, inter alia, that all LTC and RH staff were  
required to receive third doses by January 28, 2022. On January 27, 2022 a further Minister’s  
Directive was issued extending the deadline by which LTC staff were to receive third doses to  
March 14, 2022. On that same date, the Employer revised its Policy once more (“the January  
27 Policy”) to reflect the latest Directive, requiring that all LTC and RH employees were to have  
received a third dose of the vaccine by March 14, 2022 in order to be deemed fully vaccinated  
and eligible to attend at the workplace.  
40.  
While there is no evidence as to when or by what means the December 31 Policy was  
communicated to the Union, I was provided with an email from the Employer to the Union  
dated January 27, 2022 including the January 27 Policy as an attachment. Noting that the  
timing and manner of communication utilized by the Employer in respect of the January 27  
Policy is consistent with the Employer’s prior communications of revisions of the Policy to the  
37  
Union it may be assumed that the same mechanism was used in respect of the December 31  
Policy.  
APPLICATION OF THE POLICIES  
41.  
The Employer’s original Policy was effective as of July 1, 2021. When communicated to  
the Union on June 8, 2021, the Employer’s cover letter stated inter alia as follows:  
Vaccines are a proven, safe and powerful weapon in our battle against COVID-19. The  
vast majority of our residents have opted to be vaccinated, which has led to a dramatic  
drop in COVID-related infections and deaths. This speaks volumes to the benefits of  
vaccination in combatting COVID-19.  
Revera has made repeated, concerted efforts to educate and encourage staff to be  
vaccinated and to dispel misinformation and vaccine hesitancy. These have included  
letters from the Chief Executive Officer, Chief Medical Officer and Senior Vice Presidents;  
repeated emphasis on staff webinars; personal testimonials; poster campaigns; COVID  
Hotline; social media campaigns; videos; links to independent sources of information  
about the vaccines; paid time to obtain the vaccine and individual meetings with  
hesitant staff.  
The letter of June 8, 2021 went on to state that the following conditions would apply to  
unvaccinated employees:  
Revera will require any staff who are not fully vaccinated to:  
1. [Effective July 1, 2021] provide a documented medical reason as to why they cannot  
be vaccinated or participate in an educational session regarding the benefits of  
vaccination and the risks of not getting vaccinated, and  
2. [Effective July 5, 2021] participate in daily rapid antigen surveillance testing, and  
3. [Effective July 5, 2021] adhere to PPE requirements, even after these are no longer  
mandated by public health or provincial health ministries.  
(emphasis added)  
42.  
As noted above, the original Policy was not the subject of a grievance and there was no  
evidence (or suggestion) that the Employer did not take the steps referenced in its letter to  
provide education to workers respecting vaccination, paid time to obtain the vaccine or  
individual meetings with those who were vaccine hesitant. There were no grievances filed  
respecting the Employer’s application of the original Policy.  
38  
43.  
As set out in the ASF, the Union grieved the revised August 26 Policy that identified  
unpaid leaves of absence as the consequence of an employee’s failure to comply with its  
requirement that all staff be fully vaccinated by October 12, 2021. Of course, prior to October  
12, 2021, the Employer issued its revised September 29 Policy that added the additional  
potential consequence of termination while maintaining the date of October 12, 2021 as the  
deadline for the employees in the workplace to be fully vaccinated (or have agreed to receive  
vaccination by a mutually agreed date). And, finally, on October 1, 2021 the Province of  
Ontario made it mandatory for employees in LTCs to be vaccinated in order to attend the  
workplace as of November 15, 2021.  
44.  
In its application of the September 29 Policy, the Employer undertook a number of  
communications with its employees. Between October 6 and 11, 2021, it issued letters to staff  
who had not yet provided proof of vaccination, advising that unvaccinated employees would be  
“…removed from the schedule and placed on an unpaid leave of absence effective immediately  
until such time as you comply, or your employment is terminated”. Those employees who  
remained unvaccinated (and had not committed to being vaccinated) were placed on unpaid  
leaves of absence effective October 15, 2021.  
45.  
For those employees who were placed on unpaid leaves of absence, the Employer sent  
two further letters respecting the possibility of termination. Between November 6 and 11,  
2021, the first letter was sent to employees stating as follows:  
As you are aware, you were placed on an unpaid leave of absence effective October 12,  
2021 for non-compliance with Revera’s COVID-19 Immunization Policy (the “Policy”).  
Pursuant to the Policy, where an existing staff member, student placements or volunteer  
is not fully vaccinated by October 12, 2021 they must:  
1. agree in writing that they will receive their first and/or second dose by a  
mutually agreed upon date; and  
2. wear appropriate PPE (e.g. applicable PPE, including masks and face shields)  
even after such precautions are no longer mandated by applicable public health  
authorities; and  
3. submit to daily rapid antigen COVID-19 testing, again, even after such testing  
is no longer mandated by applicable public health authorities.  
For clarity, an individual must provide proof of their first dose vaccination for  
vaccines that require two shots before they can continue their employment or be  
39  
granted access to our homes or residences AND adhere to the safety measures  
(PPE and daily testing) which will remain in place until such time as the staff  
member, student placement or volunteer provides evidence, to Revera’s  
satisfaction, that they are fully vaccinated.  
Our records to date, indicate that you have not fulfilled any of the aforementioned  
requirements [or list which requirements remain unfilled] of the Policy. Please be advised  
that your continued non-compliance shall result in the termination of your employment.  
46.  
While the first letter advised that termination would occur without specifying the date  
on which such an action might take place, the second letter did provide that information. The  
second letter was sent to employees between November 26 and 30, 2021 stating:  
As you are aware, you were placed on an unpaid leave of absence effective October 12,  
2021 for non-compliance with Revera’s COVID-19 Immunization Policy (the “Policy”).  
Pursuant to the Policy, where an existing staff member, student placements or volunteer  
is not fully vaccinated by October 12, 2021 they must:  
1. agree in writing that they will receive their first and/or second dose by a  
mutually agreed upon date; and  
2. wear appropriate PPE (e.g. applicable PPE, including masks and face shields)  
even after such precautions are no longer mandated by applicable public health  
authorities; and  
3. submit to daily rapid antigen COVID-19 testing, again, even after such testing  
is no longer mandated by applicable public health authorities.  
For clarity, an individual must provide proof of their first dose vaccination for  
vaccines that require two shots before they can continue their employment or be  
granted access to our homes or residences AND adhere to the safety measures  
(PPE and daily testing) which will remain in place until such time as the staff  
member, student placement or volunteer provides evidence, to Revera’s  
satisfaction, that they are fully vaccinated.  
Further to our correspondence to you dated DATE, our records to date, indicate  
that you have not fulfilled any of the aforementioned requirements [or list which  
requirements remain unfilled] of the Policy. Please be advised that your  
continued non-compliance will result in the termination of your employment  
fifteen (15) days from the date of this letter.  
47.  
On or about the fifteenth day following the issuance of the second letter set out in the  
preceding paragraph, the Employer proceeded to terminate the employment of its  
40  
unvaccinated employees who were not subject to an exception or agreement otherwise. The  
termination letters stated as follow:  
As you are aware, you were placed on an unpaid leave of absence effective October 12,  
2021 for non-compliance with Revera’s COVID-19 Immunization Policy (the “Policy”).  
Pursuant to the Policy, where an existing staff member, student placements or volunteer  
is not fully vaccinated by October 12, 2021 they must:  
1. agree in writing that they will receive their first and/or second dose by a  
mutually agreed upon date; and  
2. wear appropriate PPE (e.g. applicable PPE, including masks and face shields)  
even after such precautions are no longer mandated by applicable public health  
authorities; and  
3. submit to daily rapid antigen COVID-19 testing, again, even after such testing  
is no longer mandated by applicable public health authorities.  
For clarity, an individual must provide proof of their first dose vaccination for  
vaccines that require two shots before they can continue their employment or be  
granted access to our homes or residences AND adhere to the safety measures  
(PPE and daily testing) which will remain in place until such time as the staff  
member, student placement or volunteer provides evidence, to Revera’s  
satisfaction, that they are fully vaccinated.  
Further to our correspondence to you dated DATE and DATE, you have not fulfilled any of  
the aforementioned requirements [or list which requirements remain unfilled] of the  
Policy. Please be advised that your employment is being terminated for cause effective  
DATE for your continued failure to adhere to the Policy.  
48.  
There was no evidence tendered nor suggestion made by the parties that any further  
actions have been taken as a result of the revisions resulting in the December 31 Policy  
requiring employees to receive a third dose of the vaccine in order to be consider fully  
vaccinated.  
COVID-19 POLICY CASELAW  
49.  
While the parties provided caselaw on the general principles that they argue are  
applicable in this case, I was also provided with a number of decisions that dealt specifically  
with policies created by employers in response to the COVID-19 pandemic. Additionally,  
pursuant to the agreement of the parties I was given additional decisions, without comment,  
that had been issued following the conclusion of the hearing. These are:  
41  
Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 (CanLII) (Ont.  
Sup. Ct.)  
Inovata Foods Corp. v A Director under the Occupational Health and Safety Act, 2020  
CanLII 49519 (ON LRB)  
United Food and Commercial Workers Canada, Local 175 v Hazel Farmer, 2020 CanLII  
104942 (ON LRB)  
United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection  
Ltd., unreported November 9, 2021 (von Veh)  
Electrical Safety Authority and Power Workers’ Union, 2021 CanLII 101015 (ON LA)  
(Stout) *  
Electrical Safety Authority and Power Workers’ Union, 2022 CanLII 343 (ON LA) (Stout)  
Ontario Power Generation and The Power Workers Union, unreported November 12,  
2021 (J. C. Murray)  
Peter Valliere v. 4250915 Canada Inc. o/a Multi Luminaire, unreported September 28,  
2021 (Watson, Employment Standards Officer)  
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2021 ONSC 7658  
(CanLII) (Ont. Sup. Ct.)  
Canada Post Corporation and Canadian Union of Postal Workers, unreported November  
30, 2021 (Burkett)  
Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers  
Canada, Local 175, 2022 CanLII 43 (ON LA) (Herman)  
Teamsters Local Union 847 and Maple Leaf Sports and Entertainment, 2022 CanLII 544  
(ON LA) (Jesin)  
CKF Inc. and TC, Local 213 (COVID Testing), Re, 2022 CarswellBC 198 (Saunders)  
Power Workers’ Union and Elexicon Energy Inc., 2022 CanLII 7228 (ON LA) (Mitchell)  
Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the  
Waterford) v. Healthcare, Office and Professional Employees Union, Local 2220, 2022  
CanLII 6832 (ON LA) (Misra)  
Algoma Steel Inc. and USW, Local 2724, 2022 CanLII 22896 (ON LA) (Kaplan)  
Caressant Care Nursing & Retirement Homes and Christian Labour Association of  
Canada, 2020 CanLII 100531 (ON LA) (Randall)  
Participating Nursing Homes and Ontario Nurses’ Association, 2020 CanLII 36663 (ON  
LA) (Stout)  
Eric Carter v. Toyota Motor Manufacturing Canada Inc., unreported December 16, 2020  
(Zakoor – Employment Standards Officer)  
Unifor Local 973 v. Coca-Cola Canada Bottling Limited, 2022 CanLII 20322 (ON LA)  
(Wright)  
The Toronto District School Board and CUPE, Local 4400, 2022 CanLII 22110 (ON LA)  
Kaplan  
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2022 CanLII  
22222 (ON LA) (M.R. Wilson)  
42  
Algoma Steel Inc. and The United Steelworkers Local 2551, unreported February 23,  
2022 (J. C. Murray)  
*initial “bottom-line” decision  
50.  
While each of the foregoing decisions is relevant to the issues under consideration in  
this proceeding, I wish to provide some more detailed review of three decisions in particular.  
The first of these is Arbitrator Stout’s final decision in Electrical Safety Authority and Power  
Workers’ Union, 2022 CanLII 343 (ON LA) (hereafter “the Electrical Safety Authority”). In this  
case, the learned arbitrator was dealing with the union’s grievance of a policy summarized as  
follows:  
[38] On October 6, 2021, the ESA announced that a revised Vaccination Policy would  
be implemented. The Vaccination Policy is attached as an appendix to this award.  
Relevant to this award is the requirement of mandatory vaccination and providing proof  
of vaccination. Employees who are not fully vaccinated are subject to testing  
requirements and they must also participate in an education session. The Vaccination  
Policy provides for exemptions under the Ontario Human Rights Code. However, the  
Vaccination Policy also provides that those employees who do not comply with the policy  
may be subject to discipline, up to and including discharge. The ESA has also reserved  
the right to place employees who do not comply with the requirements of the  
Vaccination Policy on an unpaid leave of absence.  
51.  
In the case before him, Arbitrator Stout was dealing with a workplace in which it was  
possible for many of the affected employees to work remotely and many were engaged in  
carrying out their duties and responsibilities in the field. As stated by the arbitrator:  
[76] The ESA has not had a breakout in their workplace. Since the beginning of the  
pandemic in March 2020, only seven employees have contracted COVID-19 out of their  
over 400 employees and only two of those infections may be work related. Those two  
possible work related infections occurred in early January and early February 2021,  
before vaccines were available to the general population. Those two possible workplace  
infections were reported to the MOL and the WSIB. However, I have no evidence of any  
MOL orders being made or any significant WSIB claims being made in relation to those  
two possible workplace infections.  
Ultimately, it was found that “In this case, the ESA has not demonstrated any difficulties in  
protecting their workplace utilizing a combined vaccination and testing regime”.  
52.  
In dealing with the parties’ argument about the potential conflict between individual  
and collective rights, Arbitrator Stout wrote:  
43  
[66] In St. Peter’s Health System v. CUPE, Local 778, supra, Arbitrator Charney  
undertakes a detailed review of authorities provided to him and finds that prior to  
balancing the interests of the employer and the employees one must look at any  
common law rights issues and s.7 of the Charter as to whether it is permissible to  
enforce a mandatory medical treatment. Arbitrator Charney concludes:  
“…suspending employees (non-disciplinary) for refusing to undergo medical  
treatment is a violation of their common law sec. 7 charter rights. Virtually all the  
court cases, including Supreme Court of Canada and Ontario Court of Appeal, find  
that enforced medical treatment, and I point out that this is not a medical  
examination but treatment, is an assault if there is no consent.”  
[67] I appreciate the analysis of Arbitrator Charney, but I do not agree with his  
approach. I agree that an individual employee’s rights, including the right to privacy,  
personal autonomy, and bodily integrity as well as rights under the Charter are  
fundamental to a just and democratic society. Such fundamental rights should not be  
easily abrogated or constrained by employers. However, these individual rights are not  
absolute and there are circumstances where the rights of the collective outweigh the  
rights of the individual. Arbitrator Charney’s approach, with respect, also seems to  
ignore the fact that some jobs (first responders and healthcare providers for example)  
have an inherent physical component or occur in an inherently high risk work  
environment, see Halton District School Board and ETFO (BMS Grievances) 2020 CanLII  
5702m (ON LA). I am of the view that a more nuanced contextual approach must be  
adopted applying the KVP test, and a balancing of interests is the more appropriate way  
to address the issue before me, see Sault Area Hospital and Ontario Nurses’ Association  
(Vaccinate or Mask) (2015), 262 L.A.C. (4th) 1 (Hayes).  
[68] Context is extremely important when assessing the reasonableness of any  
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 rights with a  
carefully tailored rule or policy, see Carewest v. AUPE (2001), 104 L.A.C. (4th) 240  
(Smith).2  
[69] 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.  
[70] 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  
44  
time in our history. The context is very unusual, but the existing law provides guidance  
for the analysis.  
[71] 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 vaccinate), then  
mandatory vaccination policies may not only be reasonable but may also be necessary  
and required to protect those vulnerable populations.  
[72] However, in other workplace settings where employees can work remotely and  
there is not specific problem or significant risk related to an outbreak, infections, or  
significant interference with the employer’s operations, then a reasonable less intrusive  
alternative, such as the VVD/T Policy employed prior to October 5, 2021, may be  
adequate to address the risks.  
53.  
In the result, Arbitrator Stout allowed the grievance, requiring that the employer’s  
policy be amended to reflect the circumstances as he found they then existed in that  
workplace. Included in his orders was a direction that the provision that employees might be  
disciplined or discharged for failing to get vaccinated be removed. As stated in the award:  
[92] In my view, disciplining or discharging an employee for failing to be vaccinated,  
when it is not a requirement of being hired or an agreed condition of employment 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.  
54.  
The second case I wish to reference in greater detail is that of Arbitrator Misra in  
Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v.  
Healthcare, Office and Professional Employees Union, Local 2220, 2022 CanLII 6832 (ON LA),  
(hereafter “Chartwell”). The Chartwell decision is especially important as Arbitrator Misra was  
considering a policy that was similar, but not identical to that which is under consideration in  
this case. That language was identified by the arbitrator as follows:  
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  
45  
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)  
Chartwell is, of course, one of the senior living chains that participated in the news release  
issued on August 26, 2021 as set out in paragraph 34, above. The union filed a policy grievance  
on September 8, 2021. It also appears that the parties agreed to argue the case on the basis of  
the policies as they existed on the date of the arbitration as there are references to language  
introduced following the date of the grievance which mirrors that found in the September 27  
Policy in this case. Accordingly, while the collective agreement language under consideration  
before Arbitrator Misra is different in some material respects before me, many of the same  
arguments respecting the reasonableness of the policy are the same have been advanced in  
this proceeding.  
55.  
Two provisions of the collective agreement governing the parties in Chartwell that were  
the subject of particular focus in the hearing read as follow:  
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.  
56.  
Arbitrator Misra identified three questions that were to be answered in the case before  
her, as follow:  
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?  
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?  
46  
3. Is the September 2021 Mandatory Vaccination Policy reasonable,  
particularly as it relates to the consequences of non-compliance?  
57.  
With respect to the first of these questions, it was clear on the evidence that the  
employer had not discussed the policy introduced on August 26, 2021 with the union.  
Accordingly, Arbitrator Misra found a breach of Article 18.4 and ruled:  
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.  
58.  
With respect to the second question, the learned arbitrator found that prior to August  
26, 2021 the employer had vaccination policies, such as that made in connection with annual  
influenza vaccinations, that did not include a disciplinary response in the event of an  
employee’s non-compliance. Similarly, the first iteration of the employer’s COVID-19  
Vaccination policy in June 2021 did not include a disciplinary component. Accordingly, the  
following finding of fact was made by the arbitrator:  
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.  
59.  
Accordingly, the following answer was given to the second question respecting Article  
18.5 of the collective agreement at issue in Chartwell:  
247. In respect of Article 18.5, I 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  
47  
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.  
60.  
Turning to the third question considered by Arbitrator Misra, the reasonableness of the  
policy was analyzed on the basis of how it balanced the interests of the employer and the  
employees in the context of the consequences for non-compliance. In answering the question,  
the learned arbitrator commences by stating:  
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.  
61.  
Turning to the issue of whether the mandatory nature of the requirement that an  
employee be vaccinated in order to attend in the workplace, it is found that this is not “a live  
issue” as of the date of hearing given the Minister’s Directive of October 1, 2021 and,  
accordingly, is reasonable. Similarly, the Union did not dispute that placing unvaccinated  
employees on unpaid administrative leaves of absence was reasonable (noting that this had  
been the practice under the immunization policy in place prior to the COVID-19 pandemic).  
62.  
The arbitrator goes on to deal with the issue of the reasonableness of the policy’s  
disciplinary consequences for an employee’s failure to vaccinate. While her determination  
respecting a violation of Article 18.5 was considered to be a complete answer to the  
determination as to whether the policy could stand, Arbitrator Misra finds, in the alternative,  
that the policy was unreasonable. Making a finding on this issue was necessary, in part,  
because the employer:  
219. …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  
48  
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.  
In responding to that request by the employer, the arbitrator writes as follows  
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”  
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  
49  
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. …..  
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.  
63.  
The final decision that I wish to address in some greater detail is that of Arbitrator  
Wright in Unifor Local 973 v. Coca-Cola Canada Bottling Limited, 2022 CanLII 20322 (ON LA)  
(hereafter “Coca-Cola”). In Coac-Cola, Arbitrator Wright was dealing with a grievance  
challenging the reasonableness of a COVID-19 vaccination policy that included many of the  
same elements that are at issue in this case. The initial policy, introduced on October 27, 2021,  
applied to all employees in the employer’s operations across Canada. Revisions were made to  
policy over the following months and, as set out in the award:  
13. On December 7th, 2021, the Company advised all employees by email that additional  
workplace measures would apply to those employees who were not fully vaccinated by  
January 1st, 2022: effective January 3rd, 2022, unvaccinated employees would be  
required to wear face shields over their masks when on site or in the field; and effective  
January 17th, unvaccinated employees would have to submit to a mandatory rapid  
testing program on their own time but at the Company’s expense. In the same email,  
the Company warned that further protocols might apply to unvaccinated employees:  
“Please note that ongoing failure to comply with Coke Canada’s vaccination  
policy will have consequences such as being subject to additional protocols and  
rules, including Leave Without Pay, and the possibility of significant discipline up  
to and including the termination._” _[sic)  
A further revision to the policy on January 12, 2022 mandated that employees who were not  
fully vaccinated by January 31, 2022 would be placed on indefinite unpaid leave.  
64.  
The learned arbitrator identified three arguments advanced by the union as follow:  
22. The Union challenges the reasonableness of the Policy on three grounds. First, it  
argues that the Policy is unreasonable because less intrusive means, such as enhanced  
PPE and rapid antigen testing, are sufficient to keep employees safe at work and enable  
the Company to meet its statutory obligation under the Occupational Health and Safety  
Act. Second, it expresses a concern that an employee’s decision to not get vaccinated is  
almost always based on a strongly held personal belief, that may reflect a political  
50  
perspective or lifestyle choice, because no one gives up a regular salary for no reason.  
This, it suggests, should be considered when judging the reasonableness of the Policy.  
Third, it argues that the Policy puts employees in an untenable situation; they must  
choose between their livelihood or their bodily integrity/autonomy.  
65.  
In the result, Arbitrator Wright found the policy to be reasonable. With the exception of  
employees who were unable to take the vaccine for reasons protected by the Ontario Human  
Rights Code, he determined that:  
36. …an employee’s personal belief – however strongly held – must give way to the  
health and safety concerns that animate the Policy. COVID-19 can lead to serious illness  
and death. Two employees at the Company died from the disease. In that context, an  
employee’s personal beliefs cannot override the Employer’s interest in doing everything  
possible to maintain the health and safety of the workplace.  
66.  
With respect to the significant impact on employees that might be occasioned by  
application of the policy to them, Arbitrator Wright found that the employer interest in  
protecting the health and safety of workers trumped the privacy interest of unvaccinated  
employees, writing:  
37. The Union also expresses a related concern that employees who have made the  
decision not to get vaccinated are placed in the untenable position of having to choose  
between their livelihood or their bodily integrity/autonomy. No one can deny it is an  
exceptionally hard choice for some employees to face, and one that would only be  
justified as a mandatory company requirement in the kind of extraordinary  
circumstances presented by the pandemic. In Elexicon Energy Inc., cited above,  
Arbitrator Mitchell suggests the difficulty of this choice is a relevant consideration for  
arbitrators balancing the employee interest to privacy, bodily integrity and autonomy,  
against the employer interest in maintaining the health and safety of the workplace in  
determining the reasonableness of a mandatory vaccination policy:  
“92. In my view, arbitrators should take into account in the balancing exercise  
the deep dilemma of employees who strongly do not wish to be vaccinated  
whatever their motives, and who may have few or no other realistic choices to  
work elsewhere or who will have to give up a significant amount of earned  
benefits and stability if they choose not to get vaccinated. Just because there are  
hard choices, as opposed to no choice at all, does not make the policy not  
coercive, or render it more reasonable. Of course, the policy may be reasonable  
notwithstanding the potential consequences to the individual employees, but in  
my view, there is little legitimacy in a decision that finds the policy to be  
reasonable while denying the lived reality of employees faced with the coercive  
impact of these policies.”  
51  
38. In my view, this is a fair observation; it is consistent with Arbitrator Stout’s  
characterization in ESA of the employee’s interest in privacy and bodily integrity as  
being “fundamental”. Nevertheless, Arbitrator Mitchell ultimately decides that the  
employer’s interest in protecting the health and safety of other employees is “sufficiently  
important to justify the policy” 7 although he does find the policy to be unreasonable in  
respect of three unvaccinated employees working from home, and those employees who  
work entirely outside.8 In the present case, none of the employees in the bargaining unit  
work remotely and none work entirely outside. Consistent with Arbitrator Mitchell’s  
conclusion, the Employer’s interest in this case in maintaining the health and safety of  
the workplace— in taking “every precaution reasonable for the protection of a worker”  
— justifies the Policy notwithstanding the difficulty of the choice for some employees.  
67.  
Further, Arbitrator Wright also considered the reasonableness of the policy to the  
extent that it contemplated a disciplinary response, including termination of employment, in  
the event that an employee did not comply with the mandatory requirement that all employees  
be vaccinated. In finding that the policy in Coca-Cola was not unreasonable in this respect, the  
learned arbitrator agreed with the analysis of Arbitrator Herman in Bunge Hamilton Canada,  
Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175, 2022 CanLII 43  
(ON LA) where he wrote:  
30. With respect to the references in the Vaccine Policy to discipline and 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’.  
Arbitrator Wright stated that he agreed with the analysis of Arbitrator Herman, above, finding  
that it was:  
41. …directly applicable to the present case where discipline or termination is a possible  
but not inevitable outcome of non-compliance”. To the extent that any employee is  
disciplined or discharged under the terms of the present Policy, that outcome can be  
52  
challenged with an individual grievance requiring the Company to establish just cause for its  
decision. A just cause analysis is broader and more rigorous than is the determination of  
whether a workplace policy is reasonable. Moreover, as Arbitrator Herman points out, an  
individual grievance alleging that an employer’s decision to discipline or terminate “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.”  
68.  
Finally, Arbitrator Wright sought to distinguish the case before him from the decision of  
Arbitrator Misra in Chartwell on the following basis:  
42. In the Chartwell Housing Reit award, Arbitrator Misra concluded, among other  
things, that a mandatory vaccination policy was unreasonable because she found a  
breach of the policy resulted in automatic discharge. She made clear that it was only  
that aspect of the policy that was unreasonable:  
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 noncompliance 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.  
43. The Policy before me contemplates discipline or termination as being a possibility,  
rather than being an inevitable consequence of a failure to comply with its terms, and so  
is distinguishable from the Chartwell Housing Reit award. After a careful review of the  
caselaw, Arbitrator Misra herself concludes that arbitrators are likely to find vaccination  
policies like the one before me to be reasonable:  
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.  
EMPLOYER SUBMISSIONS  
53  
69.  
As noted above, this case was argued without witnesses. Evidence included the ASF  
with the supporting documents to that provided on agreement of the parties. Further evidence  
was provided by each party in the form of academic papers, extracts from both government  
and non-governmental organizations and, in the case of the Employer, internal data respecting  
impacts of COVID-19 on its operations. All of these resources have been carefully reviewed but  
will not be individually identified in this Award. Finally, each of the parties provided written  
summaries of their submissions and I am grateful for the clarity and organization that these  
documents provided in my consideration of the parties’ positions.  
70.  
The Employer commenced its submission by seeking to distinguish the Policy at issue in  
this case from that under consideration in Chartwell. As stated in its written submission:  
The first thing to emphasize (because this shapes the rest of the analysis in this case) is  
that this is very different language than what was before Arbitrator Misra in the  
Chartwell case [see paragraph 54, above]. It does not create what she called an  
automatic and specific “discharge penalty” for non-compliance with the policy that can  
occur without a preceding unpaid leave. Instead, similar to the policy language that  
Arbitrator Herman considered in Bunge Hamilton [see paragraph 67, above], the Policy  
identifies the consequences of non-compliance with the policy as an unpaid leave and  
notes the potential for a termination, which is left to the just cause provisions of the  
Collective Agreement.  
71.  
The Employer then turned to the framework for analysis of policies introduced by  
employers set out in the decision of KVP Co. Ltd. v Lumber & Sawmill Workers' Union,  
Local 2537, [1965] O.L.A.A. No. 2, 16 L.A.C. 73, 1965 CarswellOnt 618, (hereafter “KVP”) which  
both parties accept as the standard applied in such an exercise. The analytical framework in  
that decision reads as follows:  
Recapitulation re Rule Unilaterally Introduced by the Company  
33 For convenience the above may be summarized as follows:  
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.  
54  
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.  
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.  
72.  
In assessing the various iterations of the Policy in this case, it was the position of the  
Employer that only the first and second requisite characteristics are at issue, that is whether  
the Policy is inconsistent with the Collective Agreement(s) and whether the Policy is  
unreasonable.  
73.  
The Employer further took the position that in cases where the rule under consideration  
impacts employee interests related to privacy or bodily integrity those interests must be  
balanced with the employer interest having regard to the context in which the rule arises. In  
this regard, the Employer referenced the decision of the Supreme Court of Canada in  
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper,  
Ltd. 2013 SCC 34 (CanLII, [2013] 2 SCR 458 (hereafter “Irving Pulp & Paper”) at paragraph 27:  
[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:  
55  
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.  
73.  
Turning to the question of the intersection between the Policies and the Collective  
Agreements, the Employer submitted that its various iterations were neither inconsistent with  
the Collective Agreements nor the applicable statutes or the “statutory instruments” (e.g.  
Minister’s Directive, Guidances, CMOH Directives etc.) promulgated under those statutes.  
Indeed, it was argued that the Policies were, in fact, consistent with the Employer’s contractual  
and statutory obligations. With respect to the Collective Agreements, the Employer pointed to  
the Purpose clauses, a number of which included a commitment by the parties to work with a  
view to safeguarding the interests of residents. With respect to statutes, the Employer focused  
on Article 25(2)(h) of the OHSA requiring employers to “take every precaution reasonable in the  
circumstances for the protection of a worker” (see paragraph 20, above) as well as the Bills of  
Rights for residents set out in the LTCHA and RHA (see paragraphs 21 and 23, above. These  
latter statutes articulate resident rights as including their safety, security and quality of life.  
74.  
In support of its position that the various iterations of the Policy represented reasonable  
steps in support of its contractual and statutory obligations, the Employer provided a document  
with many attachments titled “Impacts of COVID19 on the Employer’s Homes and on the  
Ontario Sector”. That document stated that the total number of LTC residents at its facilities as  
of the hearing date was 8,136 and the RH residents numbered some 8,928 individuals. The  
staff serving those residents (not just members of the bargaining units involved in this  
proceeding) included 12,505 employees in LTC and 6,546 employees in RH facilities. In the two  
year period between January 1, 2020 and December 31, 2021 LTC facilities were in “outbreak”  
for some 918 weeks impacting 2,623 residents and 1,918 staff with 734 deaths attributed to  
COVID-19. For the same period in RH facilities, the Employer reported that it was considered to  
be in “outbreak” for some 572 weeks impacting 839 residents and 557 employees with 133  
deaths attributed to COVID-19. In the six-week period between January 1and February 14,  
2022, the Employer reported and additional 56 deaths in its LTC facilities and 2 additional  
deaths in its RH facilities. It is my understanding that by “outbreak”, the Employer was  
referring to determinations made by Chief Medical Officers of local Public Health Units (or their  
equivalents).  
75.  
Further to the direct implications for the health of residents represented by the  
numbers above, the Employer pointed to the impact on the operations of each of its senior  
56  
living facilities resulting from steps taken to prevent outbreaks from occurring. These steps  
included a variety of actions including restriction of visitors, reduction of congregant activities  
whether social or associated with ADL and introduction of rules related to masking, cleaning,  
physical distancing etc., all of which directly impacted employees delivering services as well as  
the quality of life of residents. Data was provided from across the LTC and RH sectors in  
Ontario to demonstrate that impacts on the Employer’s facilities was in no way unique. Finally,  
the Employer provided data respecting the data from the facilities that are governed by the  
Collective Agreements in this case. While the results varied from facility to facility (e.g. Trillium  
Court LTC/RH experienced no outbreaks while Brierwood LTC had five (5) outbreaks totalling  
some 88 days), it was submitted that the risk of outbreak was ever-present and required that  
the Employer take steps to reduce or eliminate such risk.  
76.  
Next, the Employer conducted a detailed review of the statutory framework and the  
statutory instruments such as Minister’s Directives. The bottom line of the Employer’s analysis  
was that there was a mandatory requirement that LTC employees be fully vaccinated as of  
October 1, 2021 and that RH facilities were obligated by statute to “ reasonably replicate and  
follow” the rules applicable to LTCs.  
77.  
It was the Employer’s position that aside and apart from any statutory obligations it  
might have, its Policy was reasonable having regard to:  
the “precautionary principle” often cited by arbitrators in consideration of policies  
related to health and safety issues;  
the nature of the work performed by the members of the bargaining unit that requires  
them to be in close physical proximity/contact with both co-workers and residents;  
the expectations of residents and their families that all steps will be taken to protect the  
physical, mental and emotional health and safety of those who reside at the LTCs and  
RHs as their homes;  
the risk to residents and members of the public in the event that an outbreak  
compromises the ability of the LTC or RH to maintain operations due to staff shortages;  
the need to reduce risk in these circumstances even where that risk has not yet  
manifested in an actual outbreak;  
the enhanced level of risk for residents who are elderly (often with medical challenges)  
living in congregant settings;  
the use of vaccination as part of a multi-faceted or “layered” strategy to reduce COVID-  
19-related illness in the Employer’s facilities; and  
the absence of any credible scientific evidence supporting those who may be vaccine-  
hesitant.  
57  
78.  
Having regard to all the foregoing, it was submitted that the answer to the first question  
put to me by the parties, “Is the mandatory vaccination policy a reasonable workplace rule?”,  
must be answered in the affirmative.  
79.  
Turning to the second and third questions put by the parties, the Employer started by  
observing that “just cause” for an employer action (such as imposed leaves of absence or  
terminations of employment) may exist whether the trigger constitutes either culpable or non-  
culpable conduct on the part of the employee. In this case, the Employer takes the position  
that an employee’s failure to be vaccinated given the mandatory requirement of the Policy,  
constitutes culpable misconduct on the part of the employee. As set out in the Employer’s  
written submissions:  
The employees are off work not because they complied with the Employer’s directive, but  
because they decided not to comply with the Employer’s reasonable workplace directive.  
The Employer recognizes that these are unique circumstances involving bodily integrity  
issues (albeit its experience has been that this has typically been a stance of bodily  
integrity per se with no compelling objective basis for declining vaccination, and in fact a  
stance against own and others’ health interests). Nevertheless, the employees’ decisions  
not to comply with the reasonable rule are not beyond their control and they are  
responsible for their decisions not to comply. It is culpable non-compliance with a  
reasonable workplace rule. And the unpaid leave of absence is a just cause consequence  
of this culpable non-compliance with the reasonable workplace rule.  
(emphasis in original)  
80.  
The Employer further submits that the arbitral jurisprudence arising since the advent of  
the COVID-19 pandemic in circumstances where employers have introduced a mandatory  
vaccination policy in circumstances where employees are working in congregant settings,  
supports those employees who elect not to be vaccinated being required to take an unpaid  
leave of absence. Similarly, where employers have introduced a “vaccination or test” policy, a  
rule that employees who elect not to comply may be required to take an unpaid leave of  
absence has been found to be reasonable. See: Bunge Hamilton (Herman), Chartwell (Misra),  
Maple Leafs Sports and Entertainment (Jesin), Elixcon Energy (Mitchell), Algoma Steel (Kaplan)  
and Ontario Power Generation (J.C. Murray), supra, full citations at paragraph 49, above.  
81.  
The Employer emphasized that employees were provided with resources that might  
allow them to assess and obtain vaccinations. Further, they were provided with clear  
communication respecting the workplace consequences of non-compliance with sufficient time  
58  
to consider and make an informed choice as to how they wished to proceed. In the event that  
an employee wished to obtain a vaccination immediately prior to a particular deadline,  
mechanisms were built in to the Policy that would allow the employee to do so without  
negative financial consequences.  
82.  
Accordingly, the Employer urged a finding that the answer to the second question, “Will  
an unpaid leave typically be an appropriate initial just cause consequence for an employee  
who decides not to comply with the vaccination requirement policy?”, should similarly be  
answered in the affirmative.  
83.  
With respect to the third question that the parties have put before me, the Employer  
submits that the arbitral jurisprudence supports its position as well. In this regard, a number of  
authorities were cited, including Chartwell in which Arbitrator Misra wrote as follows:  
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.  
(emphasis added by Employer)  
84.  
Examples of other policies setting out termination of employment as a potential  
consequence of non-compliance that have been found to be reasonable were proffered by the  
Employer as follow:  
And in Bunge Hamilton, Arbitrator Herman held at para. 31 that it was reasonable for  
the policy to identify “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)”. And in Elexicon Energy at para. 118, Arbitrator Mitchell found  
59  
reasonable the policy’s identification that non-compliant employees placed on a leave of  
absence may be subject to disciplinary action up to and including termination.  
Arbitrator Murray in Ontario Power Generation at page 7:  
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 to understand that they are very  
likely to find the termination of employment upheld at arbitration. Effectively,  
employees who refuse testing will likely will have made a decision to end their career  
with this Company;  
Arbitrator Stout in Electrical Safety Authority (Full Reasons):  
[97] If an employee is unable to perform any work for a substantial period of time or if  
they are being unreasonable in complying with any reasonable alternative, then an  
employer may have just cause to impose discipline, up to and including termination.  
However, each case must be individually assessed to determine whether or not the  
employee’s conduct is such that their behaviour is sufficiently egregious or undermines  
the obligations and faith inherent to the employment relationship, see McKinley v.  
BC Tel [2001] S.C.R. 161.  
Arbitrator Kaplan in Algoma Steel found reasonable a policy in which (at page 2):  
Employees who have refused altogether to comply with the policy (e.g., unvaccinated  
employees who refuse to undergo testing) may initially be placed on an unpaid leave of  
absence for no longer than 2 weeks and, if they continue not to comply will be subject  
to termination of employment for just cause and/or terminated pursuant to article  
7.03(4) of the Collective Agreement. [article 7.03(4) is a loss of seniority provision after  
10 days of absence without satisfactory explanation.]  
[emphasis added by Employer]]  
85.  
With respect to the question of what would constitute non-compliance with the  
mandatory requirement to be vaccinated on “a sustained basis”, the Employer argued that in  
cases in which the employee is making a decision within their control and for which they are  
responsible, the arbitral jurisprudence supports employers being able to “move quickly to  
termination for just cause, even where the employee is asserting strongly held views of  
60  
personal health, integrity and safety”. In support of this proposition, I was referred to the  
decisions in Simcoe Paramedic Services v. Ontario Public Service Employees Union, Local 308,  
2008 CanLII 66623 (ON LA) (Knopf); Toronto East General Hospital and S.E.I.U., Loc. 1-On (Re),  
[2004] O.L.A.A. No. 945 (Reilly); Greater Toronto Airports Authority v. P.S.A.C., 2001  
CarswellNat 1034 (Knopf); and 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, 131 C.L.A.S. 7, 278 L.A.C. (4th) 214  
(Baxter).  
86.  
The Employer argued that an employee’s decision to remain unvaccinated in the  
circumstances of this case without a reason that is supported at law (i.e. medical or human  
rights exemption) or by any compelling objectively supported reason (e.g. by scientific  
evidence) “…undermines the obligations and faith inherent to the employment relationship”,  
particularly where the “foundational purpose” of that employment is “not just to ensure the  
health and safety of the residents, but also to optimize their quality of life”. The Employer  
noted that employees in this sector entered it knowing of this “foundational purpose” and  
further know that LTC and RHs are “high risk COVID-19 environments” in a real-world as  
opposed to abstract sense. Accordingly, the Employer submitted that the communications to  
employees of its expectations as well as the consequences for a failure to meet those  
expectations constituted reasonable notice that supports the proposition that their non-  
compliance was, in fact, on a “sustained basis” for the purpose of the Policy.  
87.  
In this case, there are no positions within the bargaining unit to which the Policy does  
not apply and all jobs involve attendance at the workplace as an essential duty and  
responsibility. Further, at the times material to this case there was no certainty as to when the  
COVID-19 pandemic might end so as to permit unvaccinated employees to attend in the  
workplace. Accordingly, the Employer argued that this was not a case in which it should be  
obligated to maintain employees on an open-ended leave of absence.  
88.  
Finally, the Employer argued that there were a number of negative consequences that  
flowed directly from employees’ failing to vaccinate so as to be able to attend in the workplace.  
Its submission on this point is set out in its written document as follows:  
1. In this case (even if this was not a case of culpable non-compliance and even if  
positions were going to open up in the near term—which has not happened for the past  
4 months and cannot reasonably be anticipated in the near to mid future), there are a  
number of negative impacts on the Employer, other employees and residents of keeping  
these employees on prolonged leaves of absence:  
61  
(a)  
(b)  
The non-complying employees do not accumulate seniority (typically after 1 or 2  
months), but maintain seniority. The non-complying employees maintain their  
seniority which effectively gives them ownership of their positions and schedule  
lines. This means that any other employees or agency/contract staff would have  
to choose to accept the shift, position and line on what amounts to a temporary  
backfill basis, with no certainty as to when the non-compliant employee may  
choose to return to work.  
This creates a number of negative impacts:  
(i)  
It is more difficult to recruit employees or agency/contract staff to fill the  
position because they obviously prefer permanent positions. This is  
especially true where a large number of staff or potential staff have part  
time jobs elsewhere and do not want to alter their other work  
arrangements unless the job is permanent. The same hesitancy applies  
when an employee would be considering changing shifts to fill the  
position—it is more difficult to convince them to change shifts if it is only  
a temporary backfill position that could end at any time.  
(ii)  
When the position is successfully filled, for the same reasons identified  
above, it is difficult to retain them in the position, and there is  
considerable turnover.  
(iii)  
(iv)  
All of the above results in staffing gaps that create significant overtime  
and overtime costs for the employer.  
And, these staffing gaps create significant agency and contractor staff  
costs.  
(v)  
The staffing gaps result in overworked and burned out staff.  
The staffing gaps risks diminished resident care.  
(vi)  
(vii) The turnover results in considerable increases in recruiting costs and time.  
(viii) The turnover results in considerable orientation and training time and  
costs.  
(ix)  
(x)  
The turnover results in overworked and burned out staff.  
The turnover risks diminished resident care.  
(c)  
It is unfair and negatively impacts the backfilling employees and those who  
continue to work during the heavy work load of the winter outbreak season  
because the non-complying employee can wait until working conditions improve  
before deciding to return to work. Or the non-complying employee can wait until  
62  
a plum position opens up before deciding to exercise her seniority to post into  
that position and return to work.  
(i)  
When the position is successfully filled, for the same reasons identified  
above, it is difficult to retain them in the position, and there is  
considerable turnover.  
(ii)  
All of the above results in staffing gaps that create significant overtime  
and overtime costs for the employer.  
(iii)  
And, these staffing gaps create significant agency and contractor staff  
costs.  
(iv)  
(v)  
The staffing gaps result in overworked and burned out staff.  
The staffing gaps risks diminished resident care.  
(vi)  
The turnover results in considerable increases in recruiting costs and time.  
(vii) The turnover results in considerable orientation and training time and  
costs.  
(viii) The turnover results in overworked and burned out staff.  
(ix)  
The turnover risks diminished resident care.  
(d)  
(e)  
It is unfair and negatively impacts the backfilling employees and those who  
continue to work during the heavy work load of the winter outbreak season  
because the non-complying employee can wait until working conditions improve  
before deciding to return to work. Or the non-complying employee can wait until  
a plum position opens up before deciding to exercise her seniority to post into  
that position and return to work.  
In Chartwell, Arbitrator Misra minimized some of these impacts on the basis that  
only 2% of the staff had been terminated and she felt that keeping them on a  
leave of absence would have only created minimal staffing related problems and  
costs.  
(i)  
First, this is incorrect. A small percentage staff shortage or turnover  
translates into considerable recruiting, orientation and training costs and  
exponentially expanded overtime costs and agency/contractor costs.  
(ii)  
Second, in any event, some of the Revera homes terminated close to 10%  
of their staff for non-compliance, so the costs of keeping them all on  
leaves of absence would be much larger.  
63  
(iii)  
Third, focusing on the percentage of non-compliant employees misses the  
whole purpose of the Policy which was and is to motivate employees to be  
compliant and continue to be fully vaccinated (and to deter them from  
being non-compliant). Clearly, keeping/losing/regaining their seniority is  
a key motivator as is evidenced by their grievances and this arbitration.  
And it does not make sense to warn all of the employees of termination,  
but then giving a non-compliant employee the soft landing of a prolonged  
leave of absence just because they were one of the only ones who did not  
comply.  
(f)  
In any event, it is inappropriate to be engaging in this assessment of negative  
consequences because this is a sustained culpable, non-compliance with a  
reasonable workplace rule that undermines the obligations and faith inherent in  
their employment in which they are entrusted to ensure the health, care and  
quality of life of frail and vulnerable residents. And even this was not true, for  
the past 4 months and for the foreseeable future (certainly not in the near- or  
mid-term), there are and will be no bargaining unit positions that are not covered  
by the reasonable workplace rule.  
89.  
In conclusion the Employer argued that the answer to the third question, “Will  
termination of employment typically be an appropriate just cause consequences for an  
employee who decides on a sustained basis not to comply with the vaccination requirement  
policy?”, should be answered in the affirmative in the circumstances of this case.  
UNION ARGUMENT  
90.  
The Union commenced its argument by acknowledging the seriousness of the COVID-19  
pandemic and, in particular, its significant impact on the healthcare sector. It confirmed that,  
as a Union, it “…continues to support, encourage and recommend vaccination for its members”.  
But the Union considers that an employee’s decision to be vaccinated or not is  
“…fundamentally about workers’ privacy, dignity, autonomy and agency to choose whether to  
have a preventative treatment injected into one’s body or not”. In the words of the Union at  
the hearing:  
Some people might respond by saying [employees] do have a choice, they just need to  
live with the consequences. That’s a ‘Hobson’s choice’ – in other words they can choose  
to take what’s available or nothing at all.  
91.  
While it was the position of the Union that the answer to all three of the posed  
questions should be in the negative it was emphasized that an answer to the first question in  
the affirmative, i.e. the mandatory vaccination policy is a reasonable workplace rule, did not  
64  
preclude a negative answer to the second or third questions respecting the consequences of a  
failure to comply with that rule. In the result, the Union sought declaratory relief that the  
Policy as written was not reasonable and a direction that the Employer amend the policy to  
allow for testing as an alternative for RH workers and in LTCs for periods when the Minister’s  
Directive requiring mandatory vaccination was, or may be, not in force. As noted, at the outset  
of this Award I remain seized to deal with any individual grievances filed by employees  
negatively impacted by the Policy in accordance with the question fashioned by the parties –  
“Are there specific circumstances for this individual employee which warrant a deviation from  
the Arbitrator’s Phase I findings respecting the appropriateness of the unpaid leave and/or  
termination of employment consequences for this employee?”.  
92.  
Starting with the question of the reasonableness of the mandatory vaccination policy as  
a workplace rule, the parties were in agreement that the starting point were the requisites as  
set out in KVP. As well, the Employer and the Union agreed that in assessing the  
“reasonableness” of a unilaterally-introduced policy – the second KVP requisite – arbitrators  
have focused on a balancing of the employer’s interests with those of the union and the  
workers it represents. Finally, the Union also adverted to the paragraph 27 from Irving Pulp  
and Paper that, for ease of reference, reads:  
[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.  
93.  
In its position that the various iterations of the Policy under review in this case do not  
meet the test of reasonableness, the Union articulated the following grounds for that  
conclusion:  
It is unreasonable for the following reasons:  
(a) It is a breach of employees’ fundamental right of privacy, bodily dignity and  
autonomy that is not outweighed by the employer’s interests;  
(b) The policy’s purported purpose is not supported by evidence and is based on a  
faulty premise.  
(c) It is coercive;  
65  
(d) The certain consequence of non-compliance with the policy is  
disproportionate to the hypothetical harm the policy is intended to prevent;  
(e) It is illogical  
There is no specific triggering event that distinguishes October 12, 2021 or August 26,  
2021 that suddenly warranted the requirement for vaccination.  
(i) These workers were healthcare heroes up until that point and vaccines  
were available to health care workers from around February 2021. What  
changed to merit the introduction of the Policy?  
(ii) BOOSTER SHOT: It is unreasonable because they are allowing people with  
admittedly no to very little immunity continue to work with only 2 doses  
until March 14, 2022  
(iii) Residents are not required to be vaccinated;  
(iv) Unvaccinated workers can be accommodated on a protected medical  
ground, and yet the employer doesn’t consider them to be a risk severe  
enough to claim undue hardship.  
(f) It is not the least intrusive means available to address the employer’s  
concerns;  
(g) the impact on the employees is significant, permanent, removes their  
livelihood, affects their sense of worth, identity, treats them like villains, and  
affects their employability  
94.  
With respect to the interests of workers, the Union pointed to a series of cases that  
stand for the proposition that these are important rights of fundamental importance to  
individuals. I was directed to the Supreme Court of Canada’s decision in Carter v. Canada  
(Attorney General), [2015] 1 S.CR. 331; 2015 SCC 5 (CanLII) at paragraph 67:  
67. The law has long protected patient autonomy in medical decision-making. In A.C. v.  
Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a  
majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed  
the “tenacious relevance in our legal system of the principle that competent individuals  
are- and should be free to make decisions about their bodily integrity” (para. 39). This  
right to “decide one’s own fate” entitles adults to direct the course of their own medial  
care (para 40): it is this principle that underlies the concept of “informed consent” and is  
protected by s. 7’s “guarantee of liberty and security of the person ….  
95.  
Further, I was referred to Arbitrator Charney’s decision in St. Peter’s Health System v.  
Canadian Union of Public Employees, Local 778 (Flu Vaccination Grievance), [2002 O.L.A.A. No.  
164; 106 L.A.C. (4th) 170 – addressed by Arbitrator Stout in Electrical Safety Authority at  
paragraph 52, above – as standing for the principle that section 7 Charter rights are “imbued” in  
the common law. To the same effect, the Union referenced the Ontario Court of Appeal’s  
66  
decision in Jones v. Tsige, 108 O.R. (3d) 241; 2012 ONCA 32; 2012 ONCA 32 (CanLII) that  
established the tort of intrusion upon exclusion. While this is obviously not a tort case, the  
Union was advancing the decision for the proposition at paragraph 45 of the decision stating:  
While the Charter does not apply to common law disputes between private individuals,  
the Supreme Court has acted on several occasions to develop the common law in a  
manner consistent with Charter values.  
Similarly, in this case it was submitted that Charter values that touch on the individual rights of  
the employees affected by the Employer’s Policy should be inform any determination  
respecting the reasonableness of that Policy.  
96.  
The Union next addressed the “precautionary principle” that informs a number of the  
analyses in the caselaw. While the principle has been articulated a number of ways, the Union  
chose one that is particularly neat, “reasonable efforts to reduce risk need not wait for scientific  
certainty”. The difficulty with assuming that principle applies in this case, says the Union, is  
that the parties have nearly two years of data as of the date of the hearing and, in its view, that  
data does not support the implementation of these Policies by the Employer. To rely on the  
precautionary principle in this case is misguided as, in fact, the risk of harm to employees (e.g.  
termination of employment) outweighs the risk by allowing them to stay in the workplace  
where there is an absence of scientific evidence that doing so will protect them, their co-  
workers or the residents. As put by the Union in pithy terms: “The precautionary principle  
should inform temporary measures, not irrevocable measures such as terminations. There is  
nothing “cautious” about termination”. In support of this proposition I was referred to a  
number of decisions with that of Vice-Chair Mitchell of the Ontario Labour Relations Board in  
United Food and Commercial Workers Canada, Local 175 v Hazel Farmer, 2020 CanLII 104942  
(ON LRB) being  
particularly helpful:  
The Interpretation of Section 25(2)(h)  
36. I have distilled the scope of section 25(2)(h) from the jurisprudence of the Courts and  
the Board to be that the Act is public welfare legislation and is to be broadly interpreted  
in accordance with its purposes. Section 25(2)(h), in particular, is sweeping in its scope  
and potentially goes beyond and in addition to any specific regulation because it is not  
possible to anticipate every circumstance in the wide variety of workplaces through  
Ontario. The purpose of the section is not to eliminate hazards but to take reasonable  
precautions to protect workers from them. A generous approach to interpretation of  
the Act in line with its purposes does not, however, justify a limitless interpretation of  
the provision. There cannot be a complete absence of risk and danger and the Act is  
67  
not aimed at achieving an impossible standard of a risk-free workplace. Ultimately,  
what the Act requires is a balance between the risk of harm, and the ability to carry out  
necessary public and private functions. It is not every precaution that must be taken but  
every reasonable one. This involves balancing what is to be gained in light of all the  
factors and circumstances including potentially the cost, the effect on efficiency, the  
severity and magnitude of the risk and the likelihood or frequency of its occurrence. And  
while it is not possible for all risk to be eliminated, it does not follow that the obligation  
of employers is to the minimum required in a regulation as there may be specific safety  
measures particular to a specific workplace that are required in addition to specific  
regulations: R. v. Timminco Ltd./Timminco Ltée, 2001 CanLII 3494 (ON CA), 54 O.R. (3d)  
21; Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc., 2011 ONCA 645 (CanLII),  
107 O.R. (3d) 763; Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013  
ONCA 75 (CanLII), 114 O.R. (3d) 321; Ontario (Labour) v. Quinton Steel (Wellington)  
Limited, 2017 ONCA 1006 (CanLII); Ontario Public Service Employees' Union v. Ontario  
(Ministry of Transportation), 2006 CanLII 10956 (ON LRB); Glencore Canada Corporation,  
2015 CanLII 85298 (ON LRB); Sgt. Mark Radke v. Ontario Provincial Police, 2017 CanLII  
56938 (ON LRB).  
37. In the specific context of the COVID-19 pandemic, section 25(2)(h) gives effect to the  
precautionary principle that there is an obligation to take all reasonable measures in the  
circumstances to protect the health and safety of workers. In the context of an epidemic  
caused by a new and previously unknown virus, the precautionary principle was given  
voice to by Mr. Justice Campbell following the SARS crisis in Ontario and was as  
described by Justice Morgan in Ontario Nurses Association v. Eatonville/Henley Place,  
2020 ONSC 2467 (CanLII) as follows:  
An important recommendation of the Commission of Inquiry chaired by Justice  
Archie Campbell in the wake of the SARS outbreak of 2003 – an outbreak of a  
virus related to COVID-19 - is that the precautionary principle is to be put into  
action in order to prevent unnecessary illness and death. As explained by Justice  
Campbell, this principle applies where health and safety are threatened even if it  
cannot be established with scientific certainty that there is a cause and effect  
relationship between the activity and the harm. Theentire point is to take  
precautions against the as yet unknown.  
(emphasis of the Union)  
97.  
In its examination of the Employer’s interests in this case, the Union turned next to  
obligations to residents. Here the Union submitted that Employer focus was misdirected.  
Instead of asking “What is the best way to get staff vaccinated?”, it should be asking “What is  
the best way to protect our residents?”. The answer to that latter question, said the Union,  
was to appreciate the evidence of waning vaccine efficacy and, instead, focus on carrying out a  
robust testing program and improve vaccination take-up by residents. Further, it was  
submitted that the data is clear that improved staffing levels leads to reduction in transmission  
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