IN THE MATTER OF AN ARBITRATION  
PURSUANT TO THE LABOUR RELATIONS ACT, 1995  
BETWEEN:  
Elementary Teachers’ Federation of Ontario  
(“Federation”)  
- and -  
Ottawa-Carleton District School Board  
(“Board” or “OCDSB”)  
Policy Grievances 2021-05 and 2021-14  
Mandatory Vaccination Protocol  
____________________________________________________________________________  
Arbitrator:  
Date:  
Michelle Flaherty  
June 21, 2022  
____________________________________________________________________________  
Arbitration held by videoconference on December 10, 2021, February 11, March 11,  
May 20 and May 25, 2022  
APPEARANCES  
For the Board  
For the Federation  
Jennifer Birrell, Counsel  
Marianne Abou-Hamad, Counsel  
Howard Goldblatt, Counsel  
Anna Goldfinch, Counsel  
Richard Sinclair, Manager of Legal Services  
and Labour Relations  
Michelle Leonard, ETFO, Executive  
Assistant, Collective Bargaining  
Barry Scott, Labour Relations Officer  
Brian LeSage, OCETFO Chief Negotiator  
Susan Gardner, OCETFO President  
Pat Dixon, OCEOTA President  
Jamieson Dyer, OCEOTA Vice-President  
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AWARD  
OVERVIEW  
1. The Federation represents elementary school teachers and occasional teachers at the Ottawa-  
Carleton District School Board. The OCDSB is the largest school board in Eastern Ontario, it  
serves students within the City of Ottawa.  
2.  
This case concerns the OCDSB’s Vaccination Protocol Procedure PR.697.HS (“Protocol”),  
which was implemented in September of 2021 and required that employees be vaccinated against  
COVID-19. The Federation does not, generally, dispute the reasonableness of the Protocol or the  
vaccine mandate. The parties agree that vaccination is the most effective strategy to reduce the  
transmission of COVID-19 in schools. They also agree that vaccination is safe and effective.  
3.  
The Federation has filed two policy grievances, which relate to the consequences of failing  
to comply with the Protocol. From approximately October 2021 to March 2022, unvaccinated  
teachers who had contact with others in schools and who did not have a valid human rights  
exemption (“unvaccinated and unexempted teachers”) were:  
a. In the case of contract teachers, placed on an administrative leave of absence,  
subject to their right to be placed on the occasional teachers’ list and accept virtual  
work assignments and apply for opportunities at the Ottawa-Carleton Virtual  
Schools (“Virtual Schools”); and  
b. In the case of occasional teachers, removed from any long-term occasional in-  
person assignments and restricted from accepting in-person work assignments.  
4.  
For ease of reference, I have referred to these measures, collectively, as “the consequences”  
or “the removal of unvaccinated and unexempted teachers from the workplace.”  
5.  
The main issue in these grievances is whether removing unvaccinated and unexempted  
teachers from the workplace was a reasonable exercise of management rights. The Board’s vaccine  
mandate was lifted in March 2022, following a memorandum issued by the Ministry of Education  
(“MOE”). As unvaccinated and unexempted teachers have now returned to in-person work, the  
main outstanding issue is whether they are entitled to compensation for the period they were  
removed from the workplace.  
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6.  
The Federation’s position is that the Board acted unreasonably because it went beyond  
what was required by the MOE’s School Board Implementation Resource: COVID-19  
Immunization Disclosure Policy for the Education Sector and by public health authorities, without  
sufficient evidence, and without appropriate consideration for the other measures available to limit  
the spread of COVID, including rapid antigen testing (“RAT”), physical distancing, ventilation,  
and personal protective equipment. The Federation also submits that the Board failed to review  
the Protocol, as required and as the circumstance of the pandemic evolved. The Federation states  
that the Board ought to have permitted unvaccinated and unexempted teachers to remain in the  
workplace, subject to RATs and other protective measures. According to the Federation, this  
would have allowed for a reasonably safe workplace, without unduly infringing the rights and  
interests of its members.  
7.  
The Board states that it has been delivering a critical public service during a pandemic, in  
the face of evolving circumstances and significant health risks. The Board submits that  
precautionary measures were necessary to ensure that schools remained open and safe.  
Precautionary measures were particularly important in the elementary school setting, where the  
student population was initially ineligible for vaccination. The Board submits that given its  
important public policy objective and the significant risks created by the pandemic, the Protocol  
and its consequences were reasonable.  
8.  
For the reasons that follow, I find that it was reasonable for the Board to remove  
unvaccinated and unexempted teachers from the workplace from approximately October 2021 to  
March 2022. Mandating vaccination and removing teachers from the workplace are extraordinary  
measures, which must not be taken lightly. However, the circumstances of the pandemic have also  
been extraordinary, as were the dynamic and serious health risks associated with COVID-19 and  
its evolving variants. In this context, the Board was entitled to remove unvaccinated and  
unexempted teachers from the workplace. These precautionary measures reasonably balanced the  
interests of the affected teachers with the Board’s obligation to provide a safe learning and working  
environment for its employees and its students. Such precautionary measures were particularly  
important in an elementary school context, where the student population was initially ineligible  
for vaccination.  
THE FACTS  
9.  
The facts are not in dispute. The parties submitted a detailed agreed statement of fact, an  
agreed statement of issues, and a joint book of documents. Neither party presented additional  
evidence at the hearing.  
10.  
The agreed statement of facts was finalized by the parties in December 2021. At the  
Federation’s request, I have taken arbitral notice of the emergence of the Omicron variant, the  
stay-at-home order issued by the Province of Ontario effective December 26, 2021, and the fact  
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that the return to in-person learning was delayed until January 17, 2022. None of those facts was  
contentious. Otherwise, the agreed statement of facts and the joint book of documents provided  
the information needed to determine the issues in these grievances and I did not need to take  
arbitral notice of any additional information.  
Background  
11.  
As we well know, COVID-19 has posed a serious and evolving health threat. It is  
particularly transmissible in crowded indoor spaces, including workplaces and classrooms. Risk  
levels can vary, although the risk to Canadians has generally been considered high.  
12.  
The pandemic has been highly disruptive to education in Ontario. Effective March 14,  
2020, the MOE ordered all public schools to close to in-person learning. Schools remained closed  
for the remainder of the 2019 – 2020 school year. The Board resumed in-person learning in  
September 2020, although schools in Ottawa were again closed to in-person learning from January  
4 to February 1, 2021. On April 12, 2021, the MOE again announced an Ontario-wide closure of  
schools. Schools remained closed to in-person learning for the balance of the 2020-2021 school  
year.  
13.  
The Board has faced significant operational challenges throughout the pandemic. This has  
included staff shortages, COVID-19 outbreaks, and isolation requirements. Although the Board  
took extraordinary measures to address these issues, the evidence before me shows that class  
closures and staff shortages persisted throughout the 2020 – 2021 school year.  
14.  
Virtual instruction has been far from ideal for most students. It has disrupted learning,  
exacerbated educational inequities, and deprived children of other supports and activities available  
through schools. The evidence also shows a strong association between time spent online learning  
and depression and anxiety in school-age children.  
15.  
The COVID-19 pandemic has had an immeasurable impact on education in Ontario, on  
staff, on students, and on their families. Education is an important public service; attendance at  
school and sustained in-classroom instruction have proven critical to the well-being and learning  
outcomes of children and youth. The evidence before me underscores the important public policy  
reasons for in-person learning.  
The 2021 – 2022 School Year: Introduction of the Protocol  
16.  
When in-person learning resumed in September 2021, vaccination was widely available to  
adults in Canada. Elementary students remained ineligible for vaccination. However, the fact that  
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the teachers and other staff could be vaccinated meant a new layer of COVID protection within  
schools.  
17.  
In preparation for the re-opening of schools and the return to in-classroom instruction at  
the start of the 2021-2022 school year, the Board, the MOE, the Ministry of Health, Ontario’s  
Chief Medical Officer of Health (“CMOH”), and Ottawa Public Health (“OPH”) issued several  
directives, policies, and guidelines. For example:  
a. On August 3, 2021, the MOE issued the COVID-19: Health, safety and operational  
guidance for schools (2021-2022) (“Operational Guidance”). Among other things,  
it required schools to implement multiple protective measures, such as masking,  
screening, distancing, and hand hygiene.  
b. In addition to complying with the Operational Guidance, the Board implemented  
measures that exceeded the MOE requirements, including mandatory masking for  
kindergarten students; elimination of indoor school assemblies; restrictions on  
visitors and volunteers; limitation on extracurricular activities; requirements that  
students remain in cohorts during recess and remain in the classroom during lunch  
period.  
c. Following updated guidance issued by the Ministry of Health on August 11, 2021,  
OPH modified the requirements for self-isolation for asymptomatic individuals  
who had a high-risk contact. Asymptomatic unvaccinated employees with a high-  
risk contact continued to be required to self-isolate. Asymptomatic fully vaccinated  
employees (with two doses of the vaccine) with a high-risk contact were now  
required to self-isolate for 10 rather than 14 days. The MOE updated the screening  
tool for the 2021-2022 school year to incorporate the different treatment of  
vaccinated and unvaccinated employees.  
d. On August 20, 2021, the MOE released the “School Board Implementation  
Resource: Data Collection & Reporting – COVID-19 Immunization Disclosure  
Policy for the Education Sector” (“Immunization Disclosure Policy”). The  
Immunization Disclosure Policy did not make vaccination mandatory. It required  
Board staff to disclose their vaccination status in a vaccination attestation. Staff  
who were not fully vaccinated were required to undergo regular RAT testing. The  
Policy’s stated purpose included supporting safer schools, optimizing vaccination  
rates, and ensuring that unvaccinated staff was routinely tested for COVID-19.  
e. On September 3, 2021, the MOE informed school boards that individuals subject  
to RAT requirements under the Immunization Disclosure Policy would need to  
provide verification of negative test results at least twice each week. This was  
subsequently increased to three times each week, effective November 15, 2021.  
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18.  
There is no dispute that none of the provincial or public health authorities required or  
specifically recommended that the Board make vaccination mandatory for employees. Similarly,  
none of the provincial or public health authorities recommended what, if any, measures be put in  
place if teachers failed to comply with a vaccine mandate. Notably, OPH did not require the Board  
to take additional or enhanced health and safety measures (beyond those referred to in provincial  
directives) based on local experience and data.  
19.  
On September 1, 2021, the Board of Trustees (“Trustees”) unanimously passed a motion  
requiring that staff work collaboratively with OPH to develop a protocol requiring that employees  
be fully vaccinated against COVID-19 (with two doses of the vaccine), subject to the Board’s duty  
to accommodate under the Human Rights Code, R.S.O. 1990 c.H.19. The motion was silent as to  
the consequences of non-compliance with the vaccine mandate.  
20.  
Before making this decision, the Trustees conducted three public meetings. The Trustees  
also gave members of the public an opportunity to make a written delegation. Some members of  
the public had an opportunity to make a verbal delegation. The Trustees received and reviewed  
numerous delegations, ranging from requests from members of the community who wanted  
anyone working with children to be vaccinated to those objecting to a vaccine mandate.  
21.  
On August 24, 2021, the Trustees held one of its three public meetings: a Special  
Committee of the Whole Meeting. On August 20, 2021, Board staff was advised that the August  
24th meeting would include a discussion about vaccine policies. Representatives from OPH were  
in attendance to respond to questions concerning COVID-19, vaccinations, RAT, and other issues  
related to the reopening of schools.  
22.  
Dr. Brent Moloughney, the OPH’s Deputy Medical Officer of Health, addressed the  
Trustees and responded to questions. Among other things, Dr. Moloughney advised that the  
number of COVID cases in Ottawa was on the rise. He explained that vaccines are safe, effective,  
and provide a “needed” layer of protection in schools. Dr. Moloughney made the following  
comment about vaccine policies:  
As I indicated, [vaccination] is a really important tool we have. Highly  
effective, safe, certainly for adults around children, it is important for them  
to be vaccinated. We are supportive of any policy that is going to increase  
vaccination in any population. I think it’s up to the individual employer to  
look at their particular context and to look at implementation issues. This is  
something that workplaces are doing every day. In general, highly supportive  
of having a policy in place. We need to support higher levels of vaccination  
but the exact detail of how you structure your policy is ultimately up to the  
employer. [Emphasis added.]  
Page 7 of 21  
23.  
Following the Trustees’ decision on September 1, 2021, the Board met with representatives  
of nine bargaining units (including the Federation) regarding the implementation of the directive  
that staff be fully vaccinated against COVID-19. At these meetings, the Board shared information  
and provided a draft Protocol. The Federation commented on implementation issues but did not  
provide substantive feedback on the draft Protocol. The Federation believed the vaccine  
requirement and the decision not to provide alternatives or accommodations to unexempted staff  
was made by Trustees at the Board meeting and could not be changed by the employees who  
participated in meetings with the bargaining units.  
24.  
The Protocol was issued on September 20, 2021. It did not allow for RAT as an alternative  
to vaccination, absent a human rights exemption.  
25.  
In keeping with the Protocol, employees were advised that if they did not receive their first  
vaccine dose by September 30, 2021, they would be placed on administrative leave without pay.  
This deadline was ultimately extended to October 7, 2021. Partially vaccinated staff was required  
to do RATs until they were fully vaccinated. Some unexempted and partially vaccinated staff was  
permitted to continue to work in person until the start of the Christmas break on December 20,  
2021, subject to RATs. Extensions to the timelines were granted based on individual  
circumstances.  
26.  
Overwhelmingly, teachers at the Board were vaccinated. As of the end of November 2021,  
the vaccination rates in the Federation bargaining units were as follows:  
a. 98.53% of contract teachers were fully vaccinated;  
b. 97.6% of the long-term occasional teachers were fully vaccinated; and  
c. 69.4% of the occasional teachers were fully vaccinated.  
27.  
A limited number of teachers faced consequences for failing to comply with the Protocol.  
Sixteen contract teachers were placed on leave without pay because of their vaccination status.  
Seven of these teachers asked to be added to the Virtual Schools list of occasional teachers and  
five received Virtual Schools assignments of varying durations.  
28.  
The assignments of two long-term occasional teachers were terminated because of their  
vaccination status. Thirty-four unvaccinated occasional teachers were restricted to accepting only  
online work assignments in the Virtual Schools. Further, 292 occasional teachers did not complete  
the vaccine attestation required by the MOE’s Immunization Disclosure Policy.  
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THE ISSUES  
29.  
The first issue raised in the grievances concerns members who were not granted a human  
rights exemption based on the evidence they provided to the Board. On this first issue, the only  
outstanding dispute concerns an occasional teacher. This aspect of the grievances is bifurcated and  
will be considered separately.  
30.  
The second issue raised in the grievances is whether the Protocol is a reasonable exercise  
of management rights. The grievances relate to the following three aspects of the Protocol, which  
are different from the MOE’s Immunization Disclosure Policy:  
a. Absent a human rights exemption, the Protocol required that teachers who have  
contact with others be vaccinated by defined dates. Absent a human rights  
exemption, the Protocol did not allow for RAT as an alternative to vaccination.  
b. Teachers who did not have a human rights exemption and were not vaccinated were  
placed on an indefinite administrative leave of absence until they provided proof of  
vaccination (two doses), or until the requirement to be fully vaccinated was no  
longer required, subject to their right to be placed on the occasional teachers’ list  
and accept virtual work assignments and/or apply for opportunities at the Virtual  
Schools.  
c. Occasional teachers who do not have a human rights exemption and were not  
vaccinated were removed from long-term occasional in-person assignments and all  
occasional teachers who did not have a human rights exemption and were not  
vaccinated were restricted from accepting in-person work assignments.  
ANALYSIS  
31.  
The Board’s authority to impose vaccine mandates is grounded in management’s right to  
implement reasonable rules as well as the duty to take any necessary measures for the protection  
of workers, as set out in the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).  
In the education context, the Education Act, R.S.O. 1990, c. E.2 and its regulations provide further  
authority for these measures.  
A. Management Rights  
32.  
Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 16 L.A.C. 73  
(Robinson) (“KVP”), sets out the scope of management’s unilateral rule-making authority under a  
collective agreement. Under KVP, a unilaterally imposed policy must meet the following criteria:  
Page 9 of 21  
a. It must not be inconsistent with the collective agreement.  
b. It must not be unreasonable.  
c. It must be clear and unequivocal.  
d. It must be brought to the attention of employees affected before the company can  
act on it.  
e. 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.  
f. Such rule should have been consistently enforced by the company from the time it  
was introduced.  
33.  
This case is about the reasonableness of the consequences of not complying with the  
Protocol. There is no dispute that the Protocol otherwise meets the requirements of KVP.  
34. Regarding the consequences of non-compliance, there is no dispute that KVP criteria a, c,  
d, and e are met. The parties’ submissions focused on whether the consequences were unreasonable  
or inconsistently enforced.  
35.  
There is now considerable arbitral jurisprudence dealing with KVP principles and  
compulsory vaccination policies. While each case turns on its facts, several general principles have  
emerged from the jurisprudence regarding the importance of context, the role of the precautionary  
principle, and the need to balance the rights and interests of employees with the risks of harm: see,  
for example, Electrical Safety Authority v. Power Workers’ Union, 2022 343 (Stout)  
(“Electrical Safety Authority”); Toronto District School Board v CUPE, Local 4400, 2022  
22110 (Kaplan) (“TDSB”); Power Workers’ Union v Elexicon Energy Inc., 2022 7228  
(Mitchell) ("Elexicon”); Unifor Local 973 v Coca-Cola Canada Bottling Limited, 2022  
25769 (Wright) (“Coca-Cola Canada”); LCBO v. OPSEU, 2021 15607 (ON LRB)  
(“LCBO”); Humber River Hospital and NOWU, Re, 2021 CarswellOnt 12199 (Johnston)  
(“Humber River”); Teamsters Local Union 847 v. Maple Leaf Sports and Entertainment, 2022  
544 (Jessin); Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and  
the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220, 2022  
6832 (Misra); and Purolator Canada Inc. v. Teamsters Local Union 938, March 15, 2022  
(unreported) (Wilson).  
Context  
36.  
Context is very important in assessing the reasonableness of vaccine policies and their  
consequences: Electrical Safety Authority, at para. 15. As we know too well, the general context  
is a global health pandemic, with an evolving and highly transmissible virus. The health risks have  
been high, and the impacts of COVID have been devastating, including serious illness and death.  
In this case, the more specific context is a workplace and education setting where thousands of  
children attend classes, mostly indoors and in close proximity. Initially, elementary school students  
Page 10 of 21  
were ineligible to receive vaccination. Online learning has proven a poor substitute for in-person  
education and there are clear and important public policy reasons for keeping schools open and  
avoiding learning disruptions.  
37.  
The pandemic has been an evolving situation. As the Federation points out, the risks the  
Board was contending with before the widespread availability of vaccination were different from  
the situation in September 2021, when it implemented the Protocol and the vaccine mandate. The  
Protocol must be assessed principally on the circumstances and potential risks when it was in  
effect, from September 2021 to March 2022. That said, the parties’ experience during the 2020 -  
2021 school year is part of the relevant context. It is the backdrop against which the Board assessed  
the risks and understood the harms associated with school closures, learning disruptions, and  
isolation requirements.  
38.  
The Federation objected to evidence of the quarantine leaves taken by teachers in 2020 -  
2021. In my view, this information forms part of the contextual backdrop and is evidence of  
operational challenges and disrupted learning in 2020 - 2021. However, I am not persuaded that  
data about COVID-related teacher absence in 2020 - 2021 is predictive of circumstances in the  
2021 - 2022 school year. The pandemic is a dynamic situation, new variants emerged since that  
time, and access to vaccination was an important factor.  
Balancing of Interests  
39.  
Determining whether the consequences in the Protocol are a reasonable exercise of  
management rights requires a balancing of interests. I have considered the interests of teachers  
who elected not to be vaccinated for personal reasons and who were not granted a human rights  
exemption. Certainly, these teachers had a legitimate interest in ongoing paid employment. While  
they have now returned to work, the duration of the unpaid leave was initially unknown, as was  
the extent of the financial repercussions and the disruption to their career.  
40.  
As others have noted, vaccine mandates mean that employees must choose between  
vaccination and the economic consequences of non-compliance with the Protocol: ATU v. TTC,  
2021 ONSC 7658 at para. 37; Elexicon at para. 92; Coca-Cola Canada at para. 36. The Federation  
submits that the Protocol is a coercive measure, which created a genuine dilemma for some  
teachers. While the evidence is that vaccines are safe and effective, I appreciate that teachers who  
declined to be vaccinated would not have given up their regular salaries and benefits unless they  
had strongly held views about vaccines.  
41.  
As described above, the Board’s interests and its obligations are in avoiding learning  
disruptions and ensuring that schools remain open and safe for students and employees. The  
Board’s interests coincide with important public policy objectives, they also engage the health,  
safety, and well-being of thousands of students and employees. Setting aside valid human rights  
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exemptions, an employee’s interests and personal beliefs – however strongly held – must be  
weighed against the serious health and safety concerns created by the pandemic. In this context,  
an employee’s personal beliefs cannot override the Board’s interest in ensuring that schools remain  
open and safe: Coca-Cola, at para. 36.  
The Precautionary Principle  
42.  
The OHSA requires that employers “take every precaution reasonable in the circumstances  
for the protection of the worker,” see s. 25(2)(h). In the specific context of the COVID pandemic,  
section 25(2)(h) of OHSA gives effect to the precautionary principle: LCBO at para. 32.  
43.  
The Federation submits that the OHSA and the precautionary principle only contemplate  
reasonable precautions. They do not permit measures that are excessive or that attempt to fully  
eliminate risk. According to the Federation, removing unvaccinated and unexempted teachers from  
the workplace goes beyond a reasonable precaution. The Federation submits that there is no  
evidence that RATs coupled with other health measures were ineffective in limiting the spread of  
COVID in schools, including at the beginning of the 2021- 2022 school year, when unvaccinated  
and unexempted teachers were present. According to the Federation, the risks associated with the  
presence of unvaccinated and unexempted teachers could be mitigated through measures other  
than removal.  
44.  
Evidence of harm is a relevant factor and part of the context in which the reasonableness  
of the measure is assessed. However, the precautionary principle allows employers to take steps  
to address the reasonable risks, without evidence of actual harm and in the absence of scientific  
certainty: see Humber River Hospital at para. 84, Elexicon, at para. 94.  
45.  
As Arbitrator Kaplan explained in TDSB at page 25, a school board must have the tools to  
keep schools open and safe. It must be able to use these tools, not just after outbreaks and school  
closures but as a precautionary measure, to prevent them in the first place. The purpose of the  
precautionary principle is to allow employers to take reasonable steps against the unknown, to  
prevent unnecessary illness and death rather than await scientific certainty that may not be timely  
or available.  
46.  
Significantly, while public health authorities did not require or specifically recommend that  
the Board impose a vaccine mandate, they were supportive of this approach. As noted, the OHP’s  
Deputy Medical Officer of Health advised Trustees on August 24, 2021 that each organization  
must make its own determination, but that OPH was supportive of policies mandating vaccines.  
At a press conference on August 17, 2021, Ontario’s Chief Medical Officer of Health (“CHMO”)  
warned that Ontario was facing a “difficult fall and winter”. Although provincial directives did not  
Page 12 of 21  
require vaccination, the CMOH is reported to have said that “he would welcome hospitals and  
other organizations that wanted to go further than [that] and make vaccination mandatory.”  
47.  
In the extraordinary and evolving circumstances created by the pandemic, I find that the  
Board was not required to begin by seeing if RATs worked as an alternative to removing  
unvaccinated and unexempted teachers from the workplace. Nor was it required to wait for  
scientific evidence or government direction before doing so. Applying the precautionary principle,  
vaccine mandates and the consequences of non-compliance are measured against the potential  
risks of virus transmission and illness, in this case, in a school setting where students were initially  
ineligible for vaccination. In the rapidly evolving context of the pandemic, the potential impact of  
transmission and the ability of schools to remain safe and open were critical considerations.  
48.  
It is also important to keep in mind the nature of the test in KVP. The purpose is to  
determine the reasonableness of the measure, not whether it was the best option or the one that  
minimally impaired employees’ rights. Whether less intrusive measures were available to achieve  
the Protocol’s objectives is a relevant consideration. However, the availability of other options is  
measured against the seriousness of the risk and the efficacy of the less invasive alternatives:  
Canada Post v. CUPW, unreported, November 30, 2021 (Burkett) at pp. 5 - 6 and TDSB, at p. 35.  
49.  
The evidence before me establishes that vaccination is more effective than RATs in  
reducing COVID-related risks. The agreed statement of fact includes evidence that:  
a. Vaccines are safe and effective;  
b. Vaccination is the most effective strategy for reducing the transmission of COVID-  
19;  
c. Vaccination reduces the risk to individuals of infection, transmission, serious  
illness, and hospitalization;  
d. Higher vaccination rates in the community and in the school “ecosystem” reduce  
infection rates, even among unvaccinated individuals, including students;  
e. RAT is a better diagnostic test for symptomatic employees than a screening tool for  
asymptomatic employees;  
f. RAT is more reliable when the viral load is at a higher level. As a result, RAT may  
not detect the presence of COVID-19 in pre-symptomatic individuals or during the  
early infection period;  
g. The accuracy and effectiveness of RAT can be impacted by test characteristics and  
sampling techniques as well as the timing of the testing relative to the development  
of the disease; and  
h. RAT will not always detect the presence of COVID. RATs are not considered an  
equivalent to vaccination as a means of reducing transmission.  
Page 13 of 21  
50.  
In assessing the reasonableness of the Protocol, I have considered whether regular RATs  
coupled with other health and safety measures were a reasonable alternative to the removal of  
vaccinated and unexempted teachers from the workplace. In the face of the evidence, it is clear  
that such measures were not as effective in reducing COVID-related risks or in ensuring that  
schools remained safe and open.  
51.  
The risks present in the elementary school setting are dynamic and serious. They include  
not only risk of transmission and illness (including in a population that was initially ineligible for  
vaccination), but also disrupted learning, school and class closures, and negative impacts on the  
wellbeing and mental health of thousands of children and youth. Given these risks and the  
important public policy reasons for keeping schools open and safe, I find that it was reasonable for  
the Board to employ the most effective strategies available to it at the time. This included removing  
unvaccinated and unexempt teachers from the workplace.  
52.  
The Federation submits that the Board acted unreasonably because it went beyond what  
was required by provincial and public health authorities, including the MOE and OPH. According  
to the Federation, the MOE Immunization Disclosure Policy reflects the provincial norm, which  
other school boards viewed as sufficient and reasonable in a school setting. The Federation notes  
that most Ontario school boards did not mandate vaccination or remove unvaccinated and  
unexempted staff from the workplace. The Federation argued that, where the Board exceeded  
public health and provincially-mandated measures, it must explain why, provide a reasonable basis  
for its decision, and demonstrate that the decision was supported by the evidence. According to  
the Federation, the Board failed to meet this standard.  
53.  
Measures taken in other workplaces are not relevant to the issues raised in these grievances:  
TDSB, at p. 31. I do not have evidence to assess the reasonableness of what was done elsewhere  
and, in any event, that is not the question before me. The issue in this case is whether the measures  
taken by this Board are reasonable and in keeping with KVP principles. Applying the KVP test,  
the issue is not what is the normative measure in the industry, but rather what is reasonable in the  
circumstances.  
54.  
There is no dispute that the Board had the power and authority to implement measures  
beyond what is required in the MOE Immunization Disclosure Policy. As Arbitrator Mitchell  
explains in Elexicon at para. 96:  
The law has been clear for decades that an employer can make reasonable rules in  
the exercise of its management rights subject to the other requirements as set out  
in the KVP case. […] OHSA places a positive duty on an employer under section  
25(2)(h) to “take every precaution reasonable in the circumstances for the  
protection of a worker”. It is not a defence open to an employer for that failure to  
take action to protect employees in the workplace from the spread of the virus that  
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while some measures such as testing are necessary and permissible, other equally  
or more important measures that impinge upon an employee’s right to bodily  
integrity and privacy, such as vaccination, cannot be contemplated under the  
legislation because that is within the sole purview of the Government of Ontario.  
55.  
It would be inappropriate to assume the Board was unreasonable because it exceeded what  
was required by the MOE and other provincial and public health authorities. As Arbitrator Mitchell  
went on to conclude at para. 97 of Elexicon: “while it is not possible for all risk to be eliminated,  
it does not follow that the obligation of employers is to the minimum required in a regulation.”  
While there is no scientific evidence, provincial or public health direction establishing that it was  
necessary to remove unvaccinated and unexempted teachers from the workplace, that is not what  
is required by the precautionary principle.  
Summary  
56.  
I have considered the particular context of this workplace and the evidence of the potential  
risks of COVID in the elementary school setting. In these circumstances, I find that employees’  
personal beliefs about vaccines – however strongly held -- cannot override the Board’s interest in  
ensuring that schools remain open and safe for its employees and for the thousands of students it  
serves.  
57.  
The evidence before me establishes that vaccines are safe and that they were the most  
effective strategy for limiting the transmission of COVID-19 and keeping schools open and safe.  
The Board was not required to impose less restrictive or effective measures such as RAT as an  
alternative consequence. Applying the precautionary principle and given the importance of in-  
person learning and the existing public health concerns, it was reasonable for the Board to employ  
the most effective strategy available to reduce risks. This included removing unvaccinated and  
unexempted teachers from the workplace between approximately October 2021 and March 2022.  
58.  
In sum, the Board’s decision to remove unvaccinated and unexempted teachers in this  
context was consistent with KVP and the precautionary principle. It reasonably balanced the  
interests of the affected teachers with the Board’s obligation to provide a safe learning and working  
environment.  
B.  
Other Issues  
59.  
I turn now to other issues raised by the Federation, which it submits establish an  
unreasonable exercise of management rights.  
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Are the consequences unreasonable because they shifted over time?  
60. According to the Federation, the Board’s position regarding the consequences of declining  
vaccination changed over time. As the Federation points out, there was no evidence that the  
scientific information or the public health directives changed between early September (when  
RATs were contemplated) and September 20, when the Protocol was issued, identifying removal  
from the workplace as a consequence of non-compliance. According to the Federation, in the  
absence of any evidence to support this shift in position, the consequences ultimately imposed by  
the Board are unreasonable.  
61.  
In its early discussions about the Protocol and the consequences of non-compliance, Board  
representatives identified RATs as an option for unvaccinated teachers. The Federation points to  
the minutes of an extraordinary Board meeting held on September 1, 2021, when the Trustees  
passed the motion to mandate vaccination. As noted, the motion is silent regarding the  
consequences of non-compliance with the upcoming protocol. However, the minutes of the  
meeting reflect the following comments from the Director of Education:  
Director Williams-Taylor noted that with the antigen testing protocols in place at  
the launch of the school year, the active risk of the transmission of COVID-19 is  
considerably diminished in school buildings. Further operational guidance from  
the Ministry is expected and an additional memo was released on 1 September  
2021 on the details for the re-opening of schools. She noted that unvaccinated  
staff, due to medical, religious or creed-based reasoning, will be exempt from the  
requirement to be vaccinated; however, those staff members will be required to  
undergo regular testing for the COVID-19 virus.  
62.  
Leading up to the Protocol, the Board’s communications to staff also identified a range of  
options for unvaccinated and unexempted employees. For example, on September 15, 2021, the  
Board advised all staff that:  
Employees who are not fully vaccinated may be required, at a minimum, to  
complete an education program and undergo regular rapid antigen testing at least  
twice weekly. Other options currently being considered as part of the mandatory  
vaccination protocol may include reassignment or leave without pay for those  
without a valid exemption.  
63.  
As noted, applying the precautionary principle, the Board did not need to wait for scientific  
evidence before taking reasonable measures to reduce risk. The pandemic created a novel situation,  
with many unknowns. In this context, it was not inappropriate or unexpected that the Board and  
its staff would consider and discuss a range of options. The fact that RATs were initially  
contemplated does not mean that an alternative measure was not reasonable. I note that other  
measures initially contemplated by the Board, including the deadlines for receiving vaccination,  
were also modified over time.  
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64.  
In my view, the Board’s contemplation and its discussion of a range of measures do not  
mean that the consequences it ultimately selected were unreasonable. I note that, after the Protocol  
was issued on September 20, 2021, the Board consistently and repeatedly stated that unvaccinated  
and unexempted employees who did not comply with the Protocol could be removed from the  
workplace.  
Should the Board have accommodated unvaccinated and unexempted teachers given their  
limited numbers?  
65.  
Ultimately, very few teachers declined to be vaccinated for personal reasons. The  
Federation submits that, given these limited numbers, unvaccinated and unexempted teachers did  
not pose a significant risk and could have been accommodated with RATs and other protective  
measures.  
66.  
As the Board points out, however, we can only guess at how many unexempted teachers  
would be unvaccinated, without the Protocol and the prospect of the consequences it imposed.  
Moreover, the evidence before me does not account for unvaccinated employees in other  
bargaining units. It would be speculative to conclude that only a few employees would have  
remained unvaccinated but for the Protocol. Similarly, it would be speculative to attempt to assess  
the potential risks in those circumstances. In any event, absent a legitimate human rights ground,  
the Board had no obligation to accommodate employees who decided not to be vaccinated.  
In granting extensions of time, was the Board required to use a decision matrix?  
67.  
The Federation submits that the Board failed to implement a nuanced assessment process  
and that its approach – to automatically place unvaccinated teachers on a leave of absence – was  
an unreasonable exercise of management rights. The Federation states that any consideration of  
individual circumstances was done without transparency and without a decision matrix, such as  
the one used in the TDSB matter.  
68.  
The TDSB decision is particularly relevant because it also considers a vaccine policy in the  
school board context. In that case, Arbitrator Kaplan held that a vaccine mandate was a reasonable  
exercise of management rights and consistent with the Charter of Rights and Freedoms, s 8, Part  
1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  
69.  
Arbitrator Kaplan also concluded that to meet operational requirements, it was reasonable  
for the TDSB to place certain unvaccinated and unexempted employees on an unpaid leave of  
absence while permitting others to remain in the workplace, subject to safety measures including  
RATs. In that case, the TDSB established a decision matrix to assess temporary exemptions from  
the vaccine requirement. This assessment was based, among other things, on whether the employee  
Page 17 of 21  
could be readily replaced, whether alternatives to employing that unvaccinated staff member were  
available, and whether the particular need for that staff member outweighed the risks to employee  
and student safety. Arbitrator Kaplan held that these operational exemptions were reasonable. He  
wrote at p. 27:  
Providing exemptions did not mean that the Policy had not been consistently  
applied, a KVP requirement. The authorities were clear that provided exemption  
requests were made on a case-by-case basis for valid and rational reasons that  
could not lead to a conclusion that an impugned policy was being inconsistently  
applied. In fact, the rigid application of a rule – the exact opposite of what actually  
took place – would probably lead to a conclusion that a policy contravened the  
governing principles of KVP for being, by definition, arbitrary and unreasonable.  
70.  
In the case before me, the Board submits that its Protocol was appropriately tailored to  
balance the interests of employees with potential risks as well as operational requirements. The  
vaccine requirement applied only to teachers who had contact with others in the workplace. The  
Protocol allowed for human rights exemptions. Although the Board’s Virtual Schools had already  
been staffed by September 2021, unvaccinated teachers and occasional teachers could apply for  
vacancies or daily assignments at Virtual Schools. Some unvaccinated and unexempted teachers  
who otherwise would have been on leave without pay taught in Virtual Schools for varying  
durations.  
71.  
It is significant that the Protocol was implemented in stages: teachers were advised of the  
requirement to vaccinate and told they could be placed on an unpaid leave of absence if they failed  
to comply. This staged implementation of the Protocol is not inconsistent or otherwise contrary to  
KVP principles. It ensured that teachers received notice of the requirement, had a reasonable  
opportunity to comply, and knew the consequences of non-compliance. As part of this process, it  
was reasonable to grant extensions to partially vaccinated teachers on a case-by-case basis. There  
may have been legitimate reasons why a teacher could not comply with the deadlines initially set  
out in the Protocol. Arguably, it would have been arbitrary and unreasonable for the Board to  
ignore individual circumstances and insist on rigid timelines.  
72.  
In this case, the Board was not required to provide evidence of a decision matrix, such as  
the one used by the TDSB. It is significant that the TDSB matter involved the CUPE bargaining  
unit, which represents almost 15,000 employees working in a range of classifications across the  
school board. In that matter, a number of factors were considered to determine whether the  
operational need for a particular unvaccinated and unexempted employee outweighed the health  
and safety risks his or her presence created for employees and students.  
73.  
The case before me involves only teachers and occasional teachers. While there may be  
some variety in the work they perform and the conditions in which they do so, the operational  
Page 18 of 21  
needs associated with their work are consistent. In-person instruction requires the presence of the  
teacher.  
74.  
Moreover, in this case, the consequences of non-compliance were consistent: all  
unvaccinated and unexempted teachers who had contact with others in the workplace were  
ultimately removed from schools. The only variable was timing and the individual circumstances  
of partially-vaccinated teachers. A matrix might have allowed for a more transparent decision-  
making process. However, particularly given the limited number of variables, I am not persuaded  
that the Board’s approach was unreasonable in the absence of a matrix. In any event, there is  
nothing to suggest that the Board’s case-by-case assessment of the timeframe for compliance was  
arbitrary or unreasonable.  
Are the consequences unreasonable because the Board failed to review the Protocol?  
75.  
The Federation relies on Paragraph 4.4 of the Protocol, which requires the Board to review  
the procedures in the Protocol, to ensure they reflect the most up-to-date evidence and public health  
guidance, including advice from OPH, the CMOH, and the MOE.  
76.  
The Federation advances two arguments in respect of the obligation to review the Protocol.  
First, it states that, between September 2021 and March 2022, the Board failed to review the  
Protocol regularly, as required, to ensure the consequences reflected the most up-to-date evidence.  
As counsel for the Federation put it: everything was changing during the pandemic, except the  
Protocol and the consequences of non-compliance.  
77.  
Second, the Federation submits that in March 2022, when the Board did review and  
ultimately lift the Protocol, it was during a wave of the highly transmissible Omicron variants.  
According to the Federation, if it was reasonable to rescind the Protocol during Omicron, the  
measures were either (a) not reasonable or necessary in the first place; or (b) could have been  
rescinded earlier, when the Delta variant dominated and the risks of transmission were lower.  
78.  
Importantly, it is not appropriate to assess the reasonability of the Protocol with benefit of  
hindsight. The measures must be considered at the time they were in place, applying the  
precautionary principle and in light of the potential risks and the information available. The  
pandemic is and was an evolving situation, and it continued to evolve between September 20, 2021  
(when the Protocol was issued) and March 2022 (when measures were lifted). That said, however,  
there is no evidence that, before March 2022, provincial authorities or public health officials  
advised that potential risks had declined or that health and safety measures should be lifted or  
reduced.  
Page 19 of 21  
79.  
I note that the Provincial Operational Guidance Policy provided for ongoing monitoring of  
the COVID-19 situation by the government of Ontario. It stated (at p.1):  
The ministry will continue to work with the Chief Medical Officer of Health  
and local public health units (PHUs) to assess key measures to inform and  
update provincial guidance and direction, including lifting measures when  
appropriate. Local public health units may require additional or enhanced  
health and safety measures based on local experience and data.  
80.  
Despite this statement and commitment, there is no evidence that the province provided  
updated guidance to school boards, including about the appropriateness of relaxing the  
recommended health and safety measures. As noted, while there was no provincial or public health  
requirement to remove unvaccinated and unexempted teachers from the workplace, I have found  
this to be a reasonable precaution in the circumstances. There is nothing in the evidence to support  
a finding that, between September 2021 and March 2022, this measure ceased to be reasonable.  
81.  
As noted, the parties finalized the agreed statement of fact in December 2021. The  
Federation’s position has been that it would be improper for me to take arbitral notice of scientific  
information not contained in the agreed statement of fact, including information about the  
transmissibility of Omicron and any associated risks. Accordingly, I do not have scientific  
evidence about Omicron, or any basis to assess its risks relative to Delta or other variants.  
82.  
I find that the Board responded reasonably to the information available to it. While  
circumstances evolved between September 2021 and March 2022, there was no evidence before  
me to show that the potential risks of the pandemic warranted reduced health and safety measures  
during that time. The fact the consequences were lifted in March does not establish that they were  
not warranted between September and March 2022. When the Board received further guidance  
from the MOE, it responded in a manner consistent with that guidance, returning unvaccinated and  
unexempted teachers to the workplace.  
DISPOSITION  
83.  
In the context of the COVID pandemic and given the dynamic risks present in the  
elementary school setting, I find that it was reasonable and in keeping with KVP for the Board to  
remove unvaccinated and unexempted teachers from the workplace from approximately October  
2021 to March 2022. This approach strikes a reasonable balance between the employees’ interests  
in ongoing, paid employment and the Board’s obligation to provide an important public service,  
while protecting the health and safety of students and staff. For the reasons set out above, I find  
that it was reasonable for the Board to employ the most effective strategies available at the time,  
which included removing unvaccinated and unexempted teachers from the workplace.  
Page 20 of 21  
84.  
For the reasons provided, I find that the three aspects of the Protocol challenged by the  
Federation are reasonable and in keeping with KVP principles. More specifically:  
a. It was reasonable to require teachers who had contact with others in the workplace  
and who did not have a human rights exemption to be vaccinated by defined dates.  
In the circumstances, the Board was not required to allow RATs as an alternative  
to vaccination.  
b. It was reasonable to place unvaccinated and unexempted teachers on an unpaid  
leave of absence from approximately October 2021 to March 2022, subject to their  
right to be placed on the occasional teachers’ list and accept virtual work  
assignments and/or apply for opportunities at the Virtual Schools.  
c. From approximately October 2021 to March 2022, it was reasonable for the Board  
to remove unvaccinated and unexempted occasional teachers from long-term  
occasional in-person assignments. Similarly, it was reasonable to restrict  
unvaccinated and unexempted occasional teachers from accepting in-person work  
assignments.  
85.  
These aspects of the grievances are dismissed. I remained seized to address any outstanding  
issues regarding members who were not granted a human rights exemption based on the evidence  
they provided to the Board.  
Signed in Ottawa on June 21, 2022.  
__________________________________  
Michelle Flaherty  
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