Revera Inc. v Christian Labour Association of Canada Award

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

3

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

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

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 1^stfollow-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 1^stdose by November

15).

Nov. 15

Nov. 26 –

30

Minor revisions to Policy (updated new hire and volunteer sections)

2^ndfollow-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%

3

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 3^rddose 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 3^rddose).

Starting

week of

Revera communicated the revised Policy requirements.

Jan. 1, 2022

Jan. 27

Revised Minister’s Directive (moving back 3^rddose deadline from January 28tyh

to March 14^th).

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.

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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

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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.

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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

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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 (1^st) 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. …..

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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 3^rdvaccination 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.”

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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

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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. (4^th) 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:

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(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

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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.

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(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

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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: