IN THE MATTER OF AN ARBITRATION  
B E T W E E N:  
Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888  
(“the Association” or “Local 3888”)  
and  
City of Toronto  
(“the City” or “the Employer”)  
Re: Mandatory Vaccine Policy Grievance  
APPEARANCES:  
For the Association:  
Howard Goldblatt, Counsel  
Heather Ann McConnell, Counsel  
Anna Goldfinch, Counsel  
Kevin McCarthy, President  
John MacLachlan, Vice-President  
John Blair, Grievance Committee Chair  
Geoff Berenz, Grievance Committee Member  
Ryan Morrison, Grievance Committee Member  
Ken Webb, Grievance Committee Member  
For the City:  
Ian Solomon, Counsel  
Sharon Duffy, Counsel  
Sean Milloy, Director, Employee Relations  
Michael Moran, Manager, Employee Relations  
Ricky Brooks, Senior Consultant, Employee Relations  
Debbie Higgins, Deputy Fire Chief, Administrative and Mechanical Services  
Michael Pitoscia, Division Chief, Infrastructure & Development Services  
Alison Anderson, Director, Occupational Health, Safety and Wellness (Retired)  
1
Hearing on the merits of this matter was held by videoconference on March 28, April 5, April 6,  
May 9, May 12, June 13, and June 24, 2022.  
AWARD  
1.  
This decision deals with the dispute between the parties as to the reasonableness of the  
Employer’s mandatory vaccination policy announced on August 19, 2021, made effective  
September 7, 2021, and updated October 6, 2021 (the “Policy”).  
2.  
By letter dated October 6, 2021 the Association initiated its policy grievance asserting  
that “the City policy on vaccination and, more specifically, its policy update of October 6, 2021  
on enforcement of the vaccination policy . . . is unreasonable, arbitrary and discriminatory and  
imposes discipline by way of suspensions on employees without just cause as well as improperly  
threatening the termination of these employees without just cause.” The Association complained  
that the City's action contravened numerous provisions of the collective agreement between these  
parties and “employment related legislation including the Occupational Health and Safety Act and  
the Ontario Human Rights Code.”  
The Hearing  
3.  
Arrangements for the conduct of the hearing were settled by preliminary orders dated  
December 17, 2021 and February 11, 2022. The parties exchanged extensive particulars prior to  
the commencement of the hearing on the merits. Those particulars were received as exhibits.  
4.  
5.  
The City presented its case first, without prejudice to its position on the issue of onus.  
The City delivered will say statements for each of its witnesses with the proviso that  
some supplementary viva voce testimony would be received. The Association elected to call no  
evidence. In the result, I received evidence from five witnesses: Alison Anderson, the City’s  
Director, Occupational, Health, Safety and Wellness who retired January 31, 2022; Sean Milloy,  
Director, Employee Relations; Geoff Boisseau, Division Commander Operations Training and  
Continuous Improvement, Toronto Fire Service; Dr. Peter Juni; and Dr. Vinita Dubey, the City’s  
Associate Medical Officer of Health.  
6.  
As the Association did not intend to cross-examine Dr. Dubey, she was not required to  
attend; the other witnesses did attend, adopted their will says, and were cross-examined by counsel  
for the Association.  
7.  
The parties made their closing submissions on June 13 and 24, 2022.  
2
Background  
8.  
The Policy at issue was adopted by the City in response to the COVID-19 pandemic and  
applied to “all City of Toronto employees, volunteers and students” and thus to Toronto Fire  
Service (“TFS”) and all fire fighters represented by the Association.  
9.  
Having regard for the evidence, the following statements drawn from particulars  
submitted by the Association and by the City summarize the context in which the dispute unfolded:  
On March 11, 2020, the World Health Organization (WHO) declared a pandemic of  
COVID-19, a new disease caused by the severe acute respiratory syndrome  
coronavirus 2 (SARS-CoV-2).  
Following the WHO's pandemic declaration, the Ontario government declared a  
province-wide state of emergency three times, pursuant to s. 7.01(1) of the  
Emergency Management and Civil Protection Act. . .  
On March 23, 2020, the Mayor of Toronto issued a Declaration of Emergency for the  
City of Toronto due to the COVID-19 pandemic.  
To address the COVID-19 safety hazard in City workplaces, the City implemented  
an extensive COVID-19 safety plan that was communicated to all staff and updated  
regularly. The safety plan and Standing Orders were comprised of numerous  
components, including: masking; physical distancing and separation; space  
occupancy; work and travel in vehicles; strategies for outside workers; online and  
paper screening tools; touchpoint reduction strategies; cleaning, hygiene and  
disinfection; working from home where possible; personal protective equipment; and  
food preparation and congregate living protocols.  
As the pandemic continued to evolve, the City considered various options short of  
mandatory vaccination: encouraging staff to be vaccinated; vaccine or educate;  
vaccine or test . . . to meet its obligation to protect the health and safety of its  
employees. The City ultimately rejected these options in favour of a mandatory  
vaccination Policy, as the option that provides the best protection to employees,  
including mitigating the risk of non-compliance with other aspects of the City's  
COVID-19 Safety Plan.  
In August 2021, the City determined that a uniform mandatory vaccination policy, in  
addition to existing COVID-19 prevention measures, was the most effective means  
of preventing the introduction of the virus into City workplaces; controlling  
transmission of the virus among City employees, inclusive of employees of TFS, as  
well as mitigating the severity of the impact of the COVID-19 pandemic on  
employees, clients and the public being served by them. . . .  
On August 19, 2021, the City Manager announced that, effective September 7, 2021,  
the City of Toronto was implementing the Policy with a deadline of October 30, 2021  
for all City employees to have received first and second doses of an approved  
COVID-19 vaccine.  
3
On September 13, 2021, Deputy Fire Chief Debbie Higgins sent a memorandum to  
all Toronto Fire Services staff to communicate that the deadline for submitting the  
vaccination disclosure form was extended from September 13 to September 17, 2021.  
The Policy provides for an exemption where an employee substantiates a Human  
Rights Code related accommodation request under the City's Accommodation Policy.  
The Policy further required employees who . . . disclosed that they had not received  
two doses of a COVID-19 vaccine, or who had not disclosed their vaccine status as  
required, to attend mandatory education about vaccination through the City's online  
education portal (ELI).  
Deputy Fire Chief Higgins sent another memorandum to TFS staff on October 1,  
2021 with the mandatory vaccination policy and a Question & Answer document  
attached. The memorandum reiterated that all City employees were required to have  
two doses of the COVID-19 vaccine by October 30, 2021.  
On October 6, 2021, the City Manager announced that those City employees who,  
after an investigation meeting, were found to have failed to comply with the Policy  
would be placed on an unpaid disciplinary suspension until they achieved  
compliance, failing which they would be terminated for cause on December 13, 2021.  
The City Manager's message of October 6, 2021 identified that City employees who  
were suspended, but provided proof of full vaccination (both doses, or a full course  
of an approved COVID-19 vaccine) during their period of suspension before  
December 13, 2021, would be able to return to work.  
The City Manager's message of October 6, 2021 also stated that employees who  
received their first dose of vaccine and provided proof by October 15, 2021 would  
remain at work and be given until the week of November 15, 2021 to obtain their  
second dose and provide proof.  
On October 6, 2021, Deputy Fire Chief Higgins sent a memorandum to TFS staff  
outlining the next steps for enforcement of the policy. It confirmed that, as of October  
5, 2021, 95% of the active workforce had disclosed their vaccine status and, of those  
who had disclosed, 89% were fully vaccinated. An additional 5% reported having  
received a first dose of the vaccine.  
The October 6, 2021 communication confirmed that the training module, “COVID-  
19 Vaccination: Understanding the Benefits and Risks”, would be “available in the  
coming days”, as would information about “targeted education sessions”.  
In order to “allow employees to take advantage of this education campaign and  
upcoming vaccination clinics,” Deputy Fire Chief Higgins confirmed that employees  
who provided proof of their first dose of vaccine before October 15, 2021 would be  
given until November 15, 2021 to obtain their second dose. Employees who failed to  
receive their second dose by the November 15, 2021 deadline would be required to  
meet with their manager/supervisor to review their status and would be suspended  
without pay until the December 13, 2021 termination deadline.  
4
On November 12, 2021 the City Manager extended the timelines for the second dose  
and announced that employees who provided proof of a first dose vaccination by  
October 31, 2021 would be given until the week of November 28, 2021 to obtain and  
provide proof of their second dose.  
The City Manager's message of November 12, 2021 provided that staff who disclosed  
that they had received one dose of vaccine and provided proof by October 31, 2021  
would remain at work and have their vaccination status review meeting the week of  
November 28, 2021 to allow them four weeks from the time of their first dose to  
obtain their second dose.  
The City Manager confirmed that 99% of the City’s active workforce had declared  
their vaccine status and 95% were fully vaccinated. He noted that 379 employees  
were placed on unpaid suspension for non-compliance with the Policy and 101 were  
on leave pending the review of their accommodation request.  
TFS members who received a first dose before November 1, 2021 were permitted to  
remain at work while awaiting their second dose. Those who obtained their first dose  
after November 1, 2021 were either suspended or placed on an unpaid leave until  
they obtained their second dose. Those who failed to receive a first and/or second  
dose, were scheduled to be terminated on December 13, 2021.  
In light of a new eight-week dosing interval based on an updated scientific review  
recommended by the National Advisory Committee on Immunization and the  
Ministry of Health, the City Manager's message of November 25, 2021 provided that  
employees who received their first dose of vaccine and provided proof by October  
31, 2021 would remain at work and be given until January 2, 2022 to obtain their  
second dose and provide proof, failing which they would be terminated for cause.  
This message also extended the time to January 2, 2022 for already-suspended  
employees who had no doses to obtain both doses of the vaccine and provide proof.  
Effective January 3, 2022, thirteen Association members were terminated for cause  
under the Policy.  
The City noted in evidence that fifteen suspended fire fighters were reinstated after  
complying with the Policy.  
The City’s Communications  
10. The City’s Policy as announced on August 19, 2021 — effective September 7, 2021 —  
concluded with the following advice to employees regarding the consequences of non-compliance:  
“Employees who do not comply with this policy may be subject to discipline, up to and including  
dismissal.”  
11.  
The memorandum Deputy Fire Chief Higgins issued on October 6, 2021 duplicated the  
text of the City Manager’s communication that day to all City of Toronto employees and advised  
TFS personnel as follows:  
5
We have been notified by the City Manager of next steps regarding enforcement of  
this policy:  
Starting the week of November 1, staff who have not provided proof of  
both doses of a COVID-19 vaccine will be required to meet with their  
manager/supervisor to review their vaccination status. If both doses have  
not been received, staff will be suspended for six weeks without pay.  
During the suspension, staff members may return to work if they provide  
proof of full vaccination.  
After the unpaid suspension, on December 13, if staff members do not  
provide proof they have received both doses of a COVID-19 vaccine,  
their employment will be terminated for cause as they will have  
chosen not to comply with the mandatory vaccination policy.  
Staff will not be able to use their vacation or other banks to maintain their  
pay during the period of suspension without pay.  
Further, it is now a condition of employment that all new City hires be  
fully vaccinated.  
We will continue to support unvaccinated staff with getting the  
information they need to become fully vaccinated. The ELI training  
module, COVID-19 Vaccination: Understanding the Benefits and Risks,  
is available to all staff and in the coming days, information about targeted  
education sessions and vaccination clinics for certain City work locations  
will be available. As per FCC 21-231, a TFS specific town hall with  
Toronto Public Health staff is being held on October 13, 2021.  
In order to allow staff to take advantage of this education campaign and  
upcoming vaccination clinics, employees who receive their first dose  
and provide proof by October 15 will be given until November 15 to  
get their second dose. If they still do not receive their second dose by  
November 15, they will be required to meet with their  
manager/supervisor to review their vaccination status and will be  
suspended without pay until December 13. (emphasis in the original)1  
12.  
Deputy Fire Chief Higgins issued a similar memorandum to TFS personnel on October  
25, 2021. It included the following:  
Thank you to the majority of TFS staff who have completed the staff vaccination  
disclosure form.  
1 The words set in bold print in this communication to TFS staff were not emphasized in the document produced as  
the communication issued by the City Manager.  
6
There remains, however, several TFS staff who have not yet accessed the  
portal to report their vaccination status. We would like to remind you of  
the requirement to do this, and that the deadline has now passed.  
As per the City's policy, we are working on setting up meetings starting  
November 1 for staff who have not provided proof of both doses of a COVID-  
19 vaccine. These staff will be required to meet with select management staff  
involved in the process to review their vaccination status.  
No Doses received: If both doses have not been received, staff will be  
suspended for up to six weeks without pay. During the suspension, staff  
members may return to work if they provide proof of full vaccination.  
After the unpaid suspension, on December 13, if staff members do not  
provide proof they have received both doses of a COVID-19 vaccine, their  
employment will be terminated for cause as they have chosen not to  
comply with the mandatory vaccination policy.  
First Dose received: Employees who received their first dose by October  
15 will be given until November 15 to get their second dose. If they do not  
receive their second dose by November 15, they will be required to meet with  
their management/supervisor to review their vaccination status and will be  
suspended without pay until December 13 and face termination for cause if  
they cannot provide proof by December 13 of a second dose.  
We want to reassure you that the number of staff not fully vaccinated is low  
and that we have begun to consider plans to mitigate any service or staffing  
impacts resulting from this to see enforcement. (emphasis in the original)  
13.  
The City Manager’s message on November 1, 2021 provided an update on progress at  
the “start of the next phase of the implementation of the City’s mandatory COVID-19 Vaccination  
Policy”. That text included the following:  
I'm very encouraged that the vast majority of City employees have received a  
complete COVID-19 vaccination course (2 doses of a two-dose series or one dose  
of a single dose vaccine) and that number continues to grow. Vaccines are the most  
effective way to protect the health and safety of our employees against the spread of  
COVID-19, so thank you to the thousands of City staff who made the right decision  
to get vaccinated.  
As of October 31, the vaccination rate of City staff is as follows:  
Employees who have submitted their vaccination status: 31,742 (99 per cent  
of the active workforce)  
The City employees who have received a complete COVID-19 vaccine  
course: 29,899 (94 per cent of the active workforce)  
7
Staff who report being partially vaccinated: 1,064 (4 per cent of active staff)  
Staff who report not having received any vaccine doses: 408 (1 per cent of  
active staff)  
Staff who completed the Staff Vaccination Disclosure form, but chose not  
to disclose their vaccination status: 356 (1 per cent of active staff)  
Staff who did not complete the Staff Vaccination Disclosure form: 533 (1  
per cent of active staff)  
Unfortunately, a small percentage of our employees remain unvaccinated or have not  
disclosed their vaccination status.  
Starting this week, staff who are not compliant with the policy will be required to  
meet with their manager/supervisor to review their vaccination status and may be  
suspended for up to six weeks without pay. As communicated last week:  
Meetings will initially focus on those who have not received any doses of a  
COVID-19 vaccine or have not disclosed their vaccination status.  
Meetings for those who disclosed they received one dose of a COVID-19  
vaccine by October 31 will start the week of November 15.  
After the period of unpaid suspension, starting on December 13, if staff members do  
not provide proof of receiving both doses of a COVID-19 vaccine, their employment  
will be terminated for cause as they will have chosen not to comply with the  
mandatory vaccination policy. (emphasis added)  
14.  
By way of example, the standardized text of the suspension letter issued to a fire fighter  
affected by the Policy and failure to comply was as follows:  
On August 19, 2021 the City introduced its Mandatory Vaccine Policy requiring that  
all staff be fully vaccinated and received both doses of a COVID-19 VACCINE no  
later than October 30, 2021. Staff were required to disclose and provide proof of  
their vaccination status. You have failed to comply with this Policy.  
An investigation meeting was conducted with you on November 15, 2021 in the  
presence of Ken Webb and Ryan Morrison from L3888 and Frank Mitchell from TFS  
Staff Services. Further to this investigation meeting with you, the City has determined  
that you have engaged in the following misconduct:  
you are insubordinate and have willfully disobeyed an important workplace  
health and safety rule by refusing to comply with the direction given to you in  
the Mandatory COVID-19 Vaccination Policy (“the Policy”) to be fully  
vaccinated with a COVID-19 vaccination series, and;  
by failing to get fully vaccinated, you have undermined a critical workplace  
health and safety measure, implemented by the City in the Policy, designed to  
8
maximize vaccination rates in order to protect employees from the serious  
hazards of COVID-19.  
As a consequence of your very serious misconduct, described above, the City is  
imposing the following disciplinary penalty: You are hereby suspended without pay,  
beginning November 16 2021 and, subject to the notice period referenced in the  
paragraph immediately below, you will remain suspended without pay until you  
achieve compliance with the Policy by uploading proof of full vaccination by no later  
than 11:59 pm on December 12, 2021, failing which you will be terminated for cause  
effective December 13, 2021.  
In the event that you have not already complied with the policy, effective December  
6, 2021, this letter constitutes seven (7) days’ notice of termination, as required by  
the Fire Protection and Prevention Act, 1997 (“FPPA”). Your pay will resume during  
the seven day notice period, however, your status will continue to be recorded as  
suspended until you either comply with the Policy or are terminated for cause on  
December 13, 2021. As such, you are not to attend a City workplace or carry on any  
work during the notice period.  
We are requesting that you consider the seriousness of your actions. I am available  
to provide you with support and additional resources you may need to comply with  
this Policy. (emphasis in the original)  
15.  
The form letter used by the Employer to confirm the dismissal of a non-compliant fire  
fighter opened with the following paragraphs:  
On November 15, 2021 you were provided with a letter advising that you were  
insubordinate and willfully refusing to comply with the City’s COVID-19  
Vaccination Policy and that your employment with the City of Toronto would be  
terminated for cause unless you achieved compliance with the Policy by uploading  
proof of full vaccination. In the intervening time, you were suspended without pay  
to provide you with an opportunity to comply with the Policy.  
As of January 3, 2022, you were still not in compliance with the City’s COVID-19  
Vaccination Policy and, as such, you have not remedied your insubordination and  
willful disobedience. Therefore, this letter confirms your termination for cause  
effective January 3, 2022.  
16.  
While not communicated to the Association or bargaining unit fire fighters at the time  
meetings were held in late 2021, the City produced for the hearing its “Scripts for meetings with  
employees who were not compliant with the COVID-19 Vaccination Policy”. The scripts directed  
interviewers to proceed as follows:  
We are here today to discuss and review your decision not to comply with the City’s  
COVID-19 Vaccination Policy and to communicate next steps.  
All employees are required to be compliant with the City’s COVID-19 Vaccination  
Policy.  
Here is a reminder of why we are having this meeting with you today:  
9
o On August 19, 2021 the City introduced its COVID-19 Vaccination Policy  
requiring that all staff be fully vaccinated no later than October 30, 2021.  
o Staff were required to disclose and provide proof of their vaccination status  
by September 17, 2021.  
o Effective October 30, 2021 you were required to have received both doses of  
a COVID-19 vaccine.  
o To date you have failed to meet these requirements.  
Why have you failed to comply with the COVID-19 vaccination policy?  
17.  
The scripts went on to instruct the interviewer to record any reasons provided by the  
employee in response to that question; to advise the employee that the meeting would be placed in  
abeyance while the interviewer considered the response; and, while the meeting was in abeyance,  
to “review and determine whether the EES reason is compelling for not complying with the  
Vaccination Policy”.  
18.  
The scripts then gave separate directions as to what the interviewer was to do if the  
employee had not provided a “compelling reason” and what the interviewer was to do if the  
employee had given a “compelling reason” or the interviewer was “not sure”. If either of the latter  
obtained, the interviewer was directed to consult Staff Services for assistance. In the absence of a  
“compelling reason”, the interviewer was to issue the suspension letter “consistent with the TFS  
template letter” and to advise the employee of his or her insubordination and willful disobedience,  
and that, by failing to get fully vaccinated, the employee had “undermined a critical workplace  
health and safety measure”.  
19.  
The scripts also cautioned the interviewer that the “meetings are not an opportunity for  
the employee to debate the merits of the COVID-19 vaccination policy”. Rather: “Meetings are  
being conducted in order for managers/supervisors to obtain the necessary response to allegations  
of policy non-compliance.”  
20.  
Another version of the City’s instructions was included in the “COVID-19 Mandatory  
Vaccination Enforcement Guide for Managers”. That text stipulated: “Managers/supervisors are  
responsible for the enforcement of the COVID-19 Vaccination Policy”.  
21.  
The Guide provided the following instructions with respect to meetings with employees  
who had received no doses of a COVID-19 vaccine or who had not declared their status as of  
November 1, 2021: “If the employee does not comply for a reason other than an outstanding  
accommodation request (e.g. the employee doesn't agree with the Policy) the manager/supervisor  
will consider the responses provided and issue a [suspension letter]” (emphasis added).  
22.  
The document also set out: “If the employee provides a credible explanation for not  
complying with the policy, consult with your ER consultant to assist in evaluating the proper  
response.” And then similar advice is given: “Employees on unpaid suspension pending  
termination who do not upload proof of vaccination by January 2, 2022 at 11:59 pm (extended  
10  
from December 12, 2021) will be sent a letter on January 3, 2022 . . . confirming their dismissal  
for cause and that they are no longer an employee of the City of Toronto.”  
23.  
One of the appendices to the Guide explained: “As per the Manager's Guide,  
disagreement with the policy, electing not to get vaccinated as a personal choice, and  
unsubstantiated accommodation requests are not compelling reasons for policy noncompliance.”  
24.  
The City filed material on June 13, 2022 setting out further information on the  
interviews of a number of fire fighters in November 2021. The record included the documentation  
of individuals’ answers to the question — “Why have you failed to comply with the COVID-19  
vaccination policy?” — that led initially to their disciplinary suspensions. Those ranged widely  
and included:  
“I don’t want the vaccine”  
“Not comfortable following the policy”  
“I do not consent to share medical information”  
“I’m not comfortable answering that question”  
“I have chosen not to vaccinate or disclose. . . The policy counters human rights  
and has caused a drop in morale. It is counter to my values. I know the father of  
a 3 year old who died after getting shot.”  
“Personal information is personal business”  
“The vaccine is in trial phases. It can kill you. I don’t take drugs. How does my  
being vaccinated protect someone else?”  
“There is no medically specific facts. I consider things skeptically. I'm a farmer  
who lives isolated and have less risk. I'm a patriot who believes in the rule of  
law. This is unjust unlawful and immoral. I choose to see this through the courts.  
I assert my rights. I love the job and I'll fight for it.  
“Medical information is personal. I have rights and freedom. It's enough for me  
to say no.”  
“I don't know enough about the vaccine. I've consulted my doctor and am  
thinking about having children.”  
“I'm keeping personal medical records private. I'm not an anti-vaxxer. I'm an  
immigrant. My father was vaxxed and has suffered hearing loss. I'm a good  
employee. I'm stressed and anxious. This has created division.”  
“Have ailment of autoimmune in my family”  
11  
“There was a lack of explanation particularly to people of colour. What about  
long term effects?”  
“My religious convictions prevent me.”  
“This is against my beliefs and conscience. I'm thankful to have worked here. I  
can't comply. I have a wife and three kids. This punishment is excessive. I'm  
disappointed and seek compassion.”  
Alison Anderson’s Evidence  
25. Alison Anderson occupied the role of Director, Occupational Health, Safety and  
Wellness in the City’s People and Equity Division from March 2007 until her retirement at the end  
of January 2022. She reported to the City’s Chief People Officer who reports to the City Manager.  
In essence, Ms. Anderson was responsible for the overall corporate COVID-19 workplace health  
and safety response and was the lead, from the health and safety perspective, on developing the  
Policy.  
26.  
Ms. Anderson spoke about the “Hierarchy of Controls” applied to the assessment of  
responses to health and safety challenges such as those presented by COVID-19. She described it  
as “a top-down framework used in occupational health and safety to identify and implement  
measures to control hazards progressively using the most effective means (at the top) to the least  
effective means (at the bottom).” She explained that applying that approach to the hazard of  
COVID-19 transmission provided “an outline of recommended strategies and the order in which  
they should be considered.” In sum, the hierarchy of controls relegated personal protective  
equipment (“PPE”) in the form of masks to the status of “the least effective control at the bottom  
of the hierarchy”. Ms. Anderson characterized PPE as “the last layer of protection after control  
measures which eliminate or prevent that hazard.”  
27.  
In contrast, having staff who are able to and have the technology to work remotely is  
“an elimination control because the employee is neither being exposed to the virus in the  
workplace, nor are they bringing the virus into the workplace.” In her viva voce testimony Ms.  
Anderson identified vaccination as an elimination strategy offering a “best chance” at risk  
reduction in relation to serious illness or death.  
28.  
Ms. Anderson testified about the requirement at the time of her retirement that all City  
staff were to complete a COVID-19 screening tool prior to beginning their shifts. She explained  
that the screening tool is “a measure to prevent workplace transmission and to facilitate contract  
tracing”, adding that screening tools and contact tracing are administrative controls — ranking  
below elimination strategies on the hierarchy of controls.  
29.  
Ms. Anderson’s evidence was that her section collected and monitored City workplace  
data respecting lost time incidents due to workplace transmission of COVID-19. In that context  
she added:  
12  
Coincident with the emergence of COVID-19 variants of concern in the spring of  
2021, infections began to rise within various City divisions, despite broad  
compliance with the City's COVID-19 Safety Plan. Within TFS alone, there have  
been a number of declared outbreaks and numerous occupational exposures over the  
course of the pandemic.  
For Toronto Fire Services (TFS), the charts [in the City’s Document Book] shows  
[sic] 13 lost time claims in 2020 and 27 in 2021, and 74 exposures in 2020 and 62  
in 2021.  
Over the course of the pandemic . . . the WSIB has determined that four City of  
Toronto employees have died due to a work-related exposure to COVID-19.2  
30.  
With that background, Ms. Anderson continued:  
Throughout the pandemic, the City's Plan has been dynamic and responsive to  
rapidly changing conditions. For example, new information about levels and mode  
of transmission (e.g. droplet, contact, airborne, aerosol) and severity of illness,  
which changed based on emerging variants of concern, required my section to  
constantly review and change safety procedures to ensure that the most protective  
measures continued to be in place. As another example, the requirements of the  
City's screening tool changed throughout.  
In such an environment, the City moved quickly from exploring a vaccine policy  
requiring disclosure of vaccine status to one requiring that employees be vaccinated  
for the following key reasons.  
The rise in COVID-19 transmissions and outbreaks in City workplaces,  
despite the extensive COVID-19 health safety measures in place through  
the COVID-19 Safety Plan  
The effect of variants of concern, including the highly transmissible  
Delta variant, emerging in summer, 2021  
The wide availability of safe and effective vaccines in Ontario by August  
2021  
The emerging public health consensus that vaccines were very effective  
and the best measure to protect individuals and reduce transmission of  
COVID-19  
The emergence of a 4th wave of the pandemic amidst the City's re-  
opening plans for September 2021.  
The planned re-opening of businesses and services.  
2 Alison Anderson Will Say, paras. 48-50. Those four were not TFS employees.  
13  
As Director Occupational Health, Safety and Wellness, I considered four options  
respecting a workplace vaccination policy:  
1) Encourage staff to be vaccinated  
2) Mandatory disclosure of vaccination status, educational programs for  
those who did not get vaccinated  
3) Mandatory disclosure of vaccination status, employee can elect to be  
vaccinated or undergo routine testing (e.g. every 48 hours)  
4) Mandatory requirement for staff to be vaccinated, subject to bona fide  
medical/human rights exceptions.3  
31.  
In explaining those alternatives, Ms. Anderson commented:  
Option 1 involved continuing to do what the City was already doing, providing  
encouraging messaging and information about where to get vaccinated and a policy  
that allowed for paid time off work to get vaccinated. I concluded that this option  
was inferior to requiring vaccination: it was the least effective.  
With respect to option 2, I agreed with and supported mandatory disclosure of  
vaccination status, however, I concluded that, while helpful, providing good science-  
based information to employees was inferior to requiring vaccination, the most  
effective protective measure.  
Option 3 would give employees the choice to either get vaccinated or undergo  
routine Rapid Antigen Testing (RAT). RAT is simply one more screening tool; an  
administrative control that falls toward the bottom of the hierarchy of controls as  
among the least effective measures. RAT, in particular, is not reliable because it  
generates a significant number of false negatives for those that are asymptomatic  
and is inferior to having employees protected by being vaccinated, in terms of the  
protection it offers from severe illness, hospitalization and death.  
As Director Occupational Health, Safety and Wellness, it is my duty to take every  
precaution reasonable for the protection of City employees. Over the course of the  
pandemic, I was constantly re-evaluating the City's Plan to confirm the utility of our  
COVID-19 safety measures. In doing so, I consulted with my Employee Health and  
Wellness team, looked to publications of the Ontario Science Advisory Table and  
consulted with Toronto Public Health for the most up-to-date information on a range  
of issues, including masking and testing, among many other issues. I looked to  
guidance from the medical community for confirmation that vaccines were safe and  
effective and was satisfied that they provided important protection from  
transmission, hospitalization and death, including in relation to the variants of  
concern.  
I concluded that the control measures in the City's existing Plan were no longer  
sufficient on their own to meet the very significant workplace safety hazard being  
3 Alison Anderson Will Say, paras. 65, 68 and 69.  
14  
posed by COVID-19 and the variants of concern. It was my conclusion that a  
uniform mandatory vaccination policy (option 4), in addition to existing COVID-19  
prevention measures, was the most effective means of preventing the introduction  
of the virus into City workplaces; controlling transmission of the virus among City  
employees, inclusive of employees of TFS, as well as mitigating the severity of the  
impact of the COVID-19 pandemic on employees, clients and the public being  
served by them, many of whom are vulnerable.  
Vaccination is an elimination control, the category of control at the top of the  
hierarchy which is the most effective at reducing hazards. Should an employee  
become infected, unlike all of the other measures, vaccination is the only measure  
that positively impacts health outcomes once the virus is in your body, decreasing  
the severity of illness, and the risk of hospitalization and death.  
Senior Leadership at the City adopted recommendation 4, that is, the mandatory  
requirement for staff to be vaccinated, subject to bona fide medical/human rights  
exceptions.4  
32.  
Ms. Anderson testified that she “was not involved in the development of the City’s  
disciplinary response announced to staff on October 6, 2021”, adding: “This issue came within the  
responsibility of the Director, Employer Relations.”5 As for the development of the Policy, Ms.  
Anderson attested to having had “a lot of input into it”; however, she was not in attendance when  
the proposed policy was presented to and approved by the City Manager and his deputies.  
33.  
Ms. Anderson testified about the timing of the introduction of the Policy with reference  
to the advent of the Delta variant and the observation that the City was seeing a dramatic drop in  
the incidence of transmissions where there was a high degree of vaccination.  
34.  
On cross-examination, Ms. Anderson was asked whether there was any consideration  
given to putting fire fighters on unpaid leave as opposed to terminating their employment. She  
testified that the alternative of unpaid leave was not considered or discussed after the determination  
had been made to use termination as the endpoint for employees who did not comply with the  
Policy mandate.  
35.  
Furthermore, on cross-examination, Ms. Anderson confirmed that, subject to a limited  
number of accommodations, the City did not vary the application of the Policy to reflect  
differences in fire fighters’ assignments, station configurations, and the like. Rather, she explained,  
operating on the principle that vaccines were the most effective measures available to the City, the  
Policy was applied to all in TFS as the risk was present for all. When questioned about the  
possibility of the City’s taking a different approach to the treatment of the thirteen members of the  
Association’s bargaining unit whose employment had been terminated — whether there was some  
basis on which they could continue to work — Ms. Anderson responded that the City had not  
considered “less effective measures” for the protection of its employees. Rather than the individual  
circumstances of affected employees, the City had regard for the “overriding circumstances” it  
4 Alison Anderson Will Say, paras. 72-78.  
5 Alison Anderson Will Say, para. 95.  
15  
was responding to. In that context, Ms. Anderson referred to clause 25(2)(h) of the Occupational  
Health and Safety Act and the City’s obligation to take all precautions reasonable in the  
circumstances. When challenged that the statute required a standard of reasonableness and not  
perfection, Ms. Anderson responded that, in her view, “reasonable precautions” in the context of  
the pandemic required recourse to vaccination, noting too that the City had responsibilities in  
connection with deaths attributed to workplace transmissions.  
36.  
Ms. Anderson’s evidence on cross-examination was that the Medical Officer of Health  
had recommended that employers adopt vaccination policies, but she agreed that the City was not  
obliged to have a policy requiring vaccination or precluding an individual’s working without  
vaccination, and that the City was not advised by a medical doctor that it could not consider  
alternatives to termination of employment for unvaccinated staff.  
37.  
In its statement of particulars, the City identified four other municipalities —  
Vancouver, Oshawa, Aurora and York Region — that had adopted mandatory vaccination policies  
and had provided for responses “up to and including termination” of the employment of those who  
refused to comply. Ms. Anderson stated that she did not look at those in developing the Policy.  
She was aware of the language used in the policies of those municipalities, but she was not aware  
of how the policies were applied or whether those municipalities were discharging staff who did  
not comply.  
38.  
Ms. Anderson was asked on cross-examination whether anyone who was neither  
vaccinated nor intending to become vaccinated — and who did not have a valid claim for an  
accommodation under the Human Rights Code or otherwise — would be entitled to be continued  
in employment. She answered: “To my knowledge, no”. When she was asked whether the only  
way for an individual to avoid termination was vaccination, she answered: “Yes”. Ms. Anderson’s  
evidence was that the City could not have employees in the workplace without their being  
vaccinated. When asked who had decided that the consequence of non-compliance would be  
termination and not a leave of absence, Ms. Anderson spoke about the typical process for  
establishing approvals, but could not testify to that distinction in the City’s approach.  
39.  
As for the experience with COVID-19 in TFS in 2021, the City’s data showed twenty-  
seven lost time events January through December. In response to the suggestion on cross-  
examination that the number of occurrences in a workforce of approximately three thousand was  
“extremely low”, Ms. Anderson’s retort was that the number was “extremely high” and that their  
job was to ensure that “none of the employees gets COVID”. While acknowledging that the City  
could not eliminate the risk, Ms. Anderson noted the view that vaccination was the best response.  
40.  
On cross-examination Ms. Anderson was confronted with data indicating that in  
December 2021 — that is, when fire fighters not fully-vaccinated were out of the workplace —  
there were eleven lost time claims for TFS staff members. She did not accept that as evidence of a  
failure of vaccinations or the Policy and referred to the Omicron variant’s taking hold at that time.  
Moreover, she did not accept the data indicating that TFS had experienced only one lost time claim  
due to COVID-19 in the five months preceding the application of the Policy to remove  
unvaccinated fire fighters in November 2021 as evidence for the proposition that there was no  
demonstrable need to apply the Policy to TFS as a precautionary measure.  
16  
41.  
Ms. Anderson included the following commentary on the environment in which TFS  
employees work in concluding her evidence in chief:  
The primary nature of the work performed by TFS is emergency response. I am  
aware that a very high proportion of calls to which TFS members respond are  
classified as medical in nature. When attending on site in response to an emergency  
call, staff are administering aid to individuals with whom they are in close physical  
proximity and may have underlying medical conditions. TFS staff also, of necessity,  
travel together in vehicles to attend emergency calls when servicing the public.  
Various divisions within TFS are subject to differing hours of work and schedules.  
I am aware that the large majority of employees within TFS work in the Operations  
Division and work a 24 hour shift. This necessitates congregate living, inclusive of  
meal preparation and sleeping arrangements at TFS fire stations over the course of  
employees' shifts.  
In my view, it is unsafe for any City of Toronto employee to attend work  
unvaccinated. COVID-19 is a serious health safety hazard that continues to present  
a serious health and safety risk, regardless of the division, operational area or job  
function, including in relation to any jobs performed by TFS staff. Given the  
conditions in which most fire fighters work and live while on shift, for their safety,  
it is vital that they are vaccinated in accordance with the City's Policy.  
Sean Milloy’s Evidence  
42.  
Sean Milloy has been Director, Employee Relations for the City since September 8,  
2020. He reports to the City’s Chief People Officer.  
43.  
Mr. Milloy explained that while he was involved in discussions about options for a  
vaccination policy, Ms. Anderson had responsibility for assessing those from a health and safety  
perspective. As Director, Employee Relations Mr. Milloy “led the administration and  
implementation of the policy, including the City’s approach to its enforcement.”  
44.  
Mr. Milloy explained that the enforcement piece was arrived at in late September,  
several weeks after the announcement of the Policy requiring vaccination:  
By the end of September, however, it had been approximately six weeks since the  
announcement of the Policy. Accordingly, the City turned its mind to enforcement  
of the Policy for those employees who remained out of compliance as of October  
30, 2021, the deadline for full vaccination, which was still a month away. As  
Director, Employee Relations, I recommended a disciplinary response which  
allowed for further time and opportunity after the investigation meeting (by way of  
a suspension without pay) for the employee to choose to comply with the Policy  
before the termination date arrived.  
On October 6, 2021, the City Manager announced that those City employees who,  
after an investigation meeting, were found to have failed to comply with the Policy  
would be placed on an unpaid disciplinary suspension until they achieved  
17  
compliance, failing which they would be terminated for cause on December 13,  
2021.6  
45.  
Mr. Milloy spoke to the Policy and the justification for the City’s approach as follows:  
In my view, the City's implementation of the Policy was appropriately flexible and  
generous. Employees were given significant advance notice (a total of  
approximately 4.5 months (from August 19, 2021 to January 2, 2022) of the  
requirements of the policy and approximately three months' notice of the  
consequences of non-compliance (from October 6, 2021 to January 2, 2022). The  
Policy requirements were well-known and continually reinforced through ongoing  
communication.  
Employee Relations staff instructed managers that, at investigation meetings, they  
were to ask employees why they had not complied with the Policy and to consider  
their response. These investigation meetings, at which Union and Association  
representation were provided, were called "vaccination status review meetings" in  
City-wide communications to staff. If the employee provided a credible explanation  
setting out a reasonable excuse for not complying with the Policy, the manager was  
to consult with their Employee Relations Consultant to assist. If the reason the  
employee did not comply was related to an accommodation request, a separate  
accommodation process was to be followed.7  
The [City’s suspension] letter set out two grounds for the discipline. First, the  
employee was insubordinate and had wilfully disobeyed an important workplace  
health and safety rule by refusing to comply with the direction in the Policy to be  
fully vaccinated against COVID-19. Second, by failing to get fully vaccinated, the  
employee was undermining a critical workplace health and safety measure,  
implemented by the City in the Policy, designed to maximize vaccination rates in  
order to protect employees from the serious hazards of COVID-19.8  
As noted, the disciplinary penalty was structured to place non-compliant employees  
on a disciplinary path to termination, while providing a compliance "off-ramp". The  
outcome, therefore, was ultimately left to the employee to decide, after having had  
the perspective of living with the economic consequences of non-compliance for  
about two months.  
In my view, it is clear that a failure to comply with a health and safety rule is culpable  
misconduct. The City takes workplace health and safety very seriously and imposes  
significant disciplinary penalties for breaches of its health and safety rules, including  
for breaches of COVID-19 safety protocols, as is seen in the many disciplinary  
letters found at Tab 3 of Volume V [of Exhibit 3, the City’s Document Book].  
6 Sean Milloy Will Say, paras. 17-18.  
7 Sean Milloy Will Say, paras. 28-29; I note that the Association objected to Mr. Milloy’s opinion evidence in that and  
subsequent paragraphs of his statement.  
8 Sean Milloy Will Say, para. 31.  
18  
Toronto Fire Service employees have been disciplined for health and safety  
violations, including for breach of City health and safety policies. Three examples  
of the City's disciplinary response to certain health and safety breaches are set out at  
Tab 3 of Volume III [of Exhibit 3, the City’s Document Book].  
I saw no reason why the failure to comply with the City's COVID-19 Vaccination  
Policy should be treated any differently. In my professional experience, employees  
are not given the discretion to decide whether or not to comply with a workplace  
health and safety rule.  
From my perspective, by refusing to comply with the Policy, employees committed  
very serious misconduct. They were insubordinate and wilfully disobeyed a very  
important workplace health and safety rule and undermined a critical workplace  
health and safety measure designed to protect employees from serious illness or  
death from COVID-19 acquired in the workplace.  
Employees who, following an investigation meeting and review, were ultimately  
terminated for non-compliance, had demonstrated a repeated and persistent refusal  
to comply with a succession of requirements under the Policy, culminating in their  
refusal to comply even when confronted with a lengthy unpaid disciplinary  
suspension leading to discharge. I determined, therefore, that where an employee  
exhibited such intransigence in relation to a critically important health and safety  
policy introduced during the extraordinary circumstances of the pandemic, the  
employment relationship was no longer viable.  
As of December 6, 2021, Toronto Fire Services had 3,010 Firefighter members of  
TPFFA Local 3888, of which 2,882 were "active" on that date. . . Out of these 2,882  
active members of the Association as of December 6, 2021, only 13 employees . . .  
ultimately did not comply with the Policy and were terminated as a result.9  
46.  
On cross-examination, Mr. Milloy spoke to the relationship between the Employee  
Services function and personnel and its client, the Staff Services function and personnel serving  
TFS. His evidence was that Staff Services made the discipline and termination decisions in relation  
to the application of the Policy. Mr. Milloy was asked whether he had personal knowledge or  
involvement concerning the application of the Policy in TFS, and he answered that he had some  
knowledge of the consequences, but was not involved with the termination of any individual’s  
employment. The approach taken was his recommended approach; the decisions to suspend and  
discharge were decisions of others according to Mr. Milloy.  
47.  
Mr. Milloy maintained on cross-examination that the Policy did not prescribe a specific  
penalty for non-compliance. Notwithstanding the references to advising that employees “will be  
suspended” and “will be terminated for cause”, Mr. Milloy insisted that behind those statements  
were the “usual discipline considerations”. The language chosen by the City was to communicate  
that there would be consequences and did not “go to nuances” according to Mr. Milloy. Even  
9 Sean Milloy Will Say, paras. 34-40; I note again that Local 3888 objected to the opinion evidence in three of the  
last four of those paragraphs.  
19  
though the original language in the September 7, 2021 communication was that employees “may  
be” disciplined was replaced by “will be” on October 6th, he said that nothing was “automatic” and  
the language was to serve as a guide to lead management through the process.  
48.  
When asked why the language was changed from the August announcement to October  
6th, Mr. Milloy testified that he did not write the texts, and the objective was to make clear that  
there would be significant consequences for those who did not comply. He added that he thought  
the unions understood that matters would follow the “normal course”. Mr. Milloy confirmed that,  
while seniority was a factor considered in a “normal disciplinary process”, seniority would not  
have a mitigating effect in relation to the deliberate misconduct of employees who were not going  
to comply.  
49.  
Mr. Milloy also acknowledged that if Staff Services went against the advice — had a  
different opinion and chose to retain an employee based on his or her seniority — he could not  
stop them or change their decision. Similarly, he acknowledged that Staff Services or TFS could  
take into consideration an employee’s disciplinary record. That too would be against the advice of  
Employee Services and, he added, against the City Manager’s advice to all City of Toronto  
employees and “what we thought should be done regarding non-compliance”. Similarly, Mr.  
Milloy allowed that TFS could “go against the advice” and permit a non-compliant employee to  
return to his or her crew or go on an unpaid leave of absence. He remarked that he or Employee  
Services had “no control”, TFS management could do whatever they wished “against our advice”  
and “against the statement by the City Manager”.  
50.  
Mr. Milloy was asked to confirm that there was nothing in the instructions for managers  
regarding their ability to consider an employee’s seniority before making a decision. He answered:  
“No” — explaining that the advice given was that seniority did not mitigate the consequence of  
non-compliance. In the same vein, Mr. Milloy was asked to confirm that there was nothing in the  
instructions to indicate that management could consider a response other than dismissal, such as a  
leave of absence. Mr. Milloy responded: “We didn’t write something contrary to our advice.”  
51.  
When asked how Staff Services personnel were to understand that they had discretion,  
Mr. Milloy answered that it was made clear that this was “discipline in the normal course”. Mr.  
Milloy was referred to the memorandum Deputy Chief Higgins issued to all TFS personnel on  
October 25, 2021 and asked where there was a statement that management would consider other  
factors. He responded that they “don’t typically give that advice; it’s part of the process — but not  
our advice” and he referred again to “discipline in the ordinary course”.  
52.  
Mr. Milloy was questioned about email communication with the Association’s  
President, Kevin McCarthy, on September 29, 2021. When asked if he had told Mr. McCarthy that  
the City would consider typical factors in relation to possible discipline, Mr. Milloy answered that  
he had told Mr. McCarthy that there would be meetings and he was quite certain that Mr. McCarthy  
understands how discipline works. The question was repeated and Mr. Milloy answered “No”,  
adding that he did not explain the discipline process and stating: “Our advice was that [other  
factors] weren’t sufficient to ameliorate someone’s saying they never would be vaccinated.”  
20  
53.  
Mr. Milloy was then asked what an employee could say — other than seeking an  
accommodation or agreeing to be vaccinated — that would allow him or her to avoid suspension  
and eventual discharge. His response was that he could not think of anything; the City had allowed  
them to respond, and he could not think of “any reason for refusing”.  
54.  
When questioned about the specific data generated with respect to TFS and the various  
precautionary practices in place within TFS Mr. Milloy remarked that the City “did not go with  
peaks and troughs” and the Policy was based on its application to all employees.  
55.  
Testifying on May 9, 2022, Mr. Milloy confirmed on cross-examination that the City  
had not modified the Policy to require employees to receive “booster shots”, and that the Policy  
remained in place notwithstanding that both the provincial mandate and the state of emergency  
declared by the City had been lifted.  
56.  
Mr. Milloy was asked again about the City’s giving “any regard to unpaid leaves of  
absence” and he responded that they had thought about all consequences that could be imposed  
and leaves were not an appropriate way to deal with people who would not comply. He remarked  
that employees were “not immediately dismissed” and that the City had taken “a very unique  
approach”.  
57.  
As the City noted in its particulars, other municipalities had adopted mandatory  
vaccination policies. Counsel for the Association put to Mr. Milloy that those municipalities had  
stated that non-compliance “may” — rather than “will” — result in discipline and discharge. Mr.  
Milloy asserted that the Policy was the initial communication effective September 7th — in which  
the statement was that employees who did not comply “may be subject to discipline, up to an  
including dismissal” — and that the October 6th communications did not constitute the Policy.  
58.  
Mr. Milloy testified that he did not know of any other municipality that had taken the  
“next steps” identified in the October 6th communications; he also commented that he had not  
asked about other municipalities’ processes.  
59.  
Mr. Milloy confirmed on cross-examination that decisions to suspend and discharge  
employees were not informed by medical authorities, but were a function of the enforcement  
process identified by the City to deal with employees’ insubordination.  
60.  
Mr. Milloy was questioned about a slide deck used in a presentation August 17, 2021  
of the recommended approach to the vaccination policy attributed to Mr. Milloy, Ms. Anderson  
and the Chief People Officer. It set out the following as four options for a City-wide workplace  
vaccination policy:  
1) Encourage staff to be vaccinated. (current state)  
2) Mandatory disclosure of vaccination status, educational programs for those who  
do not get vaccinated. (Current LTCH approach)  
21  
3) Mandatory disclosure of vaccination status, employee can elect to be vaccinated  
or undergo routine testing (e.g. every 48 hours). (UHN, provincial health care  
approach)  
4) Mandatory requirement for staff to be vaccinated, subject to bona fide  
medical/human rights exceptions. (emphasis in the original)  
61.  
The same material included the following under the caption “Jurisdictional Landscape”:  
Coincidental with the recent increase in cases there is also undeniable evidence  
that vaccines are effective in preventing the spread of and the worst health  
impacts of COVID-19.  
Current provincial direction regarding vaccination policies centres around a  
“vaccinate or test” approach for healthcare and long-term care employees.  
There is no legislation supporting employers in the development of their policies  
outside of a healthcare/LTC setting. As such, the City will likely be subject to  
grievances or other legal challenges to any policy that is introduced.  
The federal government announced a mandatory vaccination requirement (e.g.  
option four) for all federally regulated workplaces and crown agencies, subject  
only to medical accommodation exceptions.  
In the absence of provincial legislation, other municipalities, City agencies and  
even private sector organizations are looking to the City of Toronto for guidance.  
Although the City does not regulate occupational health and safety we can lead  
by the policy we adopt for our own employees.  
62.  
The slide deck continued with the following under the caption “Policy Considerations”:  
Disclosure of vaccination status is required.  
The less equivocal the Policy and related communications the more likely it is  
that staff will get vaccinated.  
A delay in the effective date of the Policy gives staff adequate time to get the  
message and get vaccinated — ideally both doses.  
The Policy will be accompanied by targeted education to unvaccinated staff.  
The focus will be on education, but we also need to indicate that we are not taking  
the possibility of discipline/dismissal off the table.  
Legal looking into approach for Purchase of Services shelters.  
63.  
The slide deck set out the following under the caption “Recommended Approach —  
Option 4 Mandatory Vaccination – September 30th effective date”:  
22  
After Labour Day, all City staff will be required to provide proof of vaccination.  
Unvaccinated staff or those who prefer not to disclose their vaccination status  
will attend mandatory education on the benefits of vaccination. They may also  
be required to routinely submit proof of negative COVID test.  
Effective September 30th, 2021 it will be mandatory for all City employees to be  
vaccinated.  
The City will comply with its human rights obligations and accommodate  
employees who are legally entitled to accommodation.  
The public health situation, as of September 30, 2021, will determine the  
approach the City will take to employees who remain unvaccinated. Options will  
include continuing to accept proof of negative test AND discipline up to and  
including dismissal. Communication will emphasize our strong belief that  
employees to do [sic] the right thing and our hope that discipline will not be  
required.  
64.  
When asked with reference to that document if the City considered whether alternatives  
would work, Mr. Milloy reiterated that approving leave in the face of non-compliance was not an  
acceptable approach. As for the possibility of moving people to other jobs, Mr. Milloy expressed  
the view that the Policy ought to apply across the work force and that once an employee contracted  
COVID-19 it would not matter where that employee was working. Re-assigning non-compliant  
employees was not a viable alternative.  
65.  
Mr. Milloy confirmed on cross-examination that the most recent “Mandatory  
Vaccination Policy Guide for Managers” delivered with his supplementary will say of May 5, 2022  
was produced by his office, Employee Relations, and provided the instruction to “take action” by  
considering an employee’s refusal to comply “for a reason other than an outstanding  
accommodation request (e.g. the employee doesn’t agree with the Policy)” and issuing a  
suspension letter that presaged dismissal for cause. The latest version of the scripts for meeting  
with employees directed the issuance of “the suspension/dismissal letter” if “the employee has not  
provided a compelling reason as to why they are not compliant with the COVID-19 Vaccination  
Policy”. Mr. Milloy’s evidence was that he did not regard “compelling reason” to be different  
from the “credible explanation” referred to in another version of the instructions.  
66.  
In his will say dated April 1, 2022, Mr. Milloy referred to the test of an employee’s  
provision of “a credible explanation setting out a reasonable excuse for not complying with the  
Policy”. On cross-examination, he was asked whether he could give an example and his answer  
suggested a situation of an employee’s originally thinking the City would not follow through now  
subsequently agreeing to get vaccinated with the realization that the City would indeed act as  
indicated in the communications to staff. In that circumstance, Mr. Milloy said, he would expect  
the employee to be given leeway, but he reiterated his earlier statement that he could not think of  
a good reason not to be vaccinated. Counsel pursued that, challenging Mr. Milloy that the City  
was suggesting there was a possibility that an employee might avoid compliance, but Mr. Milloy  
could not offer a reasonable excuse. Mr. Milloy spoke again about discipline in the ordinary course  
and said that he could not suggest an excuse that would apply to vaccination.  
23  
Geoff Boisseau’s Evidence  
67.  
Geoff Boisseau has held the position of Division Commander Operations Training and  
Continuous Improvement since October 2020 and, having been a Fire Captain, has “accumulated  
extensive experience in front-line emergency response and operations as well as approximately 20  
years of occupational health and safety experience, specifically within TFS.” Commander  
Boisseau is the management Co-Chair of the central joint health and safety committee for TFS and  
testified to having been “the lead for TFS occupational health and safety response for COVID  
protocols” over the course of the pandemic. While he was not consulted or involved in the City’s  
decision to introduce the Policy, Commander Boisseau’s evidence was that he believes it to be “an  
essential component of the risk mitigation strategy for TFS over the course of the pandemic.”  
68.  
Commander Boisseau testified about the environment in which fire fighters work. He  
explained:  
One of the unique aspects of TFS is the congregate type living that operations  
personnel experience on shift. Operations staff work 24 hour shifts in a fire station.  
They work an alternating 24 hour shift which means they are scheduled in the  
workplace 7 shifts out of 29 shifts. There are a total of approximately 2700 TFS  
firefighters that work these shifts. When working a 24 hour shift, there are normally  
a minimum of 4 (single apparatus station) to as many as 12 (multiple apparatus  
station) firefighters assigned to a specific fire station where all the activities of daily  
living, including eating and sleeping, occur. As a result, there is a familiarity that  
exists when living with "your crew" that is atypical of most workforces. Given the  
congregate living experienced during shifts, firefighters are more apt to differentiate  
their behaviours in the "home" setting of the fire stations versus their behaviours  
when attending an emergency call. While firefighters are highly familiar with  
donning and doffing of PPE when attending to calls, within the fire stations,  
firefighters are not used to such precautions and are more likely to let their guard  
down given the comfort felt both with their crew and within the more home-like  
setting. In my estimation, this familiarity exacerbated a lack of compliance with risk  
mitigation strategies and posed a unique challenge for TFS.  
In addition, firefighters must travel in fire vehicles together when attending calls,  
with a minimum of 2-4 personnel travelling together in a single vehicle. While TFS  
takes precautions in this regard, including use of PPE and specific seating, the  
requirements for traveling to emergency calls may further exacerbate the possibility  
of transmission.  
As a general premise, occupational health and safety is highly important within TFS  
and taken very seriously. The City's Document Book, Volume 3, Tab 9 contains  
some of the occupational health and safety policies that are issued and in effect at  
TFS, beyond COVID-19 safety policies. These touch on a wide range of issues  
including, without limitation, seatbelts, use of defibrillators, eye protection safety,  
fall prevention, hearing protection, wearing and maintenance of Personal Protective  
Equipment including medical gloves, masks, boots, helmets, suits etc., heat and cold  
protocols, mandatory blood testing, slips/trips/falls prevention. It is an expectation  
of TFS that all occupational health and safety policies are complied with.  
24  
The nature of the emergency calls that TFS responds to requires that our front-line  
personnel be prepared for numerous possibilities. The Yearly Event Matrix data  
(Vol. 3, Tab 1) confirms that over the last three (3) years over 50% of the emergency  
dispatch calls responded to have been classified as medical. These calls can take  
many forms for example, injecting epi-pens to sustain life, performing CPR, using a  
defibrillator, oxygen delivery, attending at accident scenes and rescuing or removing  
individuals who may have become trapped in wreckage and so on. All these  
interactions require close, sustained contact with members of the public who may be  
ill or otherwise vulnerable. In addition, TFS interacts with the public in numerous  
other instances; collecting information from individuals on scene and assisting other  
first responders as necessary. The varied nature of the calls that TFS responds to  
requires that we be prepared to attend on scene in a range of settings, which may  
include entering homes, cars, encampments and other areas where vulnerable  
individuals are in close proximity. TFS personnel are first responders who are often  
first on scene, and accordingly must be prepared to respond to a wide variety of  
situations.10  
69.  
Commander Boisseau gave evidence about measures taken in response to COVID-19  
to guide risk mitigation strategies for TFS including screening, physical distancing, occupancy  
limits, masking, mealtimes and disinfecting protocols, and observed:  
Despite all of the guidance and requirements for safety protocols that were created  
and communicated during the pandemic, TFS nevertheless suffered from  
compliance issues with its staff. There were a number of Ministry of Labour visits  
throughout the course of the pandemic, some that were initiated by the Ministry itself  
and some that arose as a result of complaints or occupational exposures. . .  
In December 2020, a TFS Supervisor received a compliance order from the Ministry  
of Labour as a result of an occupational exposure to COVID-19 that occurred at Fire  
Station 331. The order was issued in respect of a Supervisor/Acting Captain for  
failing to ensure that equipment/protective devices required by the employer were  
worn by the workers – in this case, a failure to ensure that masks were worn during  
a training exercise where workers were unable to maintain appropriate physical  
distancing. As a result of this incident a firefighter contracted COVID-19 through  
workplace exposure and crew members were required to remain off-duty and isolate.  
An Advisory dated December 30, 2020 was sent to all TFS personnel advising of  
the incident and reminding personnel of the importance of adhering to the various  
directives in place. . .  
Compliance issues with COVID-19 safety protocols resulted in TFS imposing  
discipline where appropriate. By way of example, in December 2021, a TFS Captain  
was demoted to the rank of First Class Firefighter for a period of one year. While it  
should be noted that this discipline is the subject of an active grievance, the discipline  
was imposed as a result of, amongst other things, the Captain not wearing a mask,  
remaining in the workplace while showing symptoms of illness that could have been  
COVID-19 related and failing to ensure that personnel under the Captain's direction  
followed relevant COVID-19 policies. . .  
10 Geoff Boisseau Will Say, paras. 24-27.  
25  
There are other examples of lack of compliance that resulted in disciplinary action  
and, in some instances, contributed to significant work disruption as numerous staff  
were required to remain away from work on isolation. Any discipline imposed has  
been grieved by the Association. . .  
While these examples of non-compliance are not exhaustive, they are illustrative of  
the types of issues that TFS experienced over the course of the pandemic despite the  
clear written directives that were communicated to staff.  
Despite all the protections taken over the course of the pandemic, TFS workplaces  
suffered outbreaks and members of its personnel did contract COVID-19.11  
70.  
Commander Boisseau testified about a schedule of TFS Designated Officer Contract  
Tracing that recorded data for three periods — March 6, 2020 – December 1, 2021, December 1,  
2021 – January 16, 2022, and January 17, 2022 – February 2, 2022 — and indicated the tracking  
of the incidence of staff being found to be positive for COVID-19, at high risk due to travel, having  
been placed on quarantined paid leave due to workplace high risk exposure, being symptomatic,  
involved in an outbreak, or subject to an occupational illness report.  
71.  
On cross-examination Commander Boisseau confirmed that he was neither consulted  
about nor involved in the decision to introduce the Policy. In his words, he had “no input  
whatsoever” and that extended to the consequences of a fire fighter’s non-compliance. However,  
Commander Boisseau did have a significant role in the implementation of the Policy at the  
enforcement stage in that he attended most of the interviews with operations staff who were called  
upon to explain their failure to comply with the Policy.  
72.  
Commander Boisseau was not involved in conducting any risk analysis or in discussions  
about accommodating employees. However, he has an involvement in planning TFS staffing and  
he testified that the dismissal of thirteen fire fighters would not cause TFS to change any staffing  
plans and had not negatively affected TFS operations. When asked to confirm the investment in  
training and the time it would take TFS to replace a Captain, Commander Boisseau responded that  
he has a list of Acting Captains and could replace a departing Captain in a day.  
73.  
As for the interviews or meetings with employees not then in compliance with the  
Policy, Commander Boisseau said on cross-examination that some explained their concerns, that  
he did not try to find out why an individual was not getting vaccinated, and he simply tried to find  
out whether they had complied. Commander Boisseau testified that he issued a suspension letter  
if the individual did not confirm vaccination; if the individual subsequently complied, then he  
would issue a reinstatement letter.  
74.  
Commander Boisseau acknowledged that if the employee did not qualify under the  
Policy, he had no latitude to consider whether the person had offered a reasonable basis for not  
complying. Moreover, he did not give any consideration to the person’s disciplinary record or  
seniority, the person’s rank, or the number of his or her crew members who were vaccinated. His  
11 Geoff Boisseau Will Say, paras. 18-23.  
26  
question to an interviewee was: “Why have you not complied?” There was no discussion or  
consideration of “credible explanations” and, he testified, the employee’s response was not  
evaluated. He stated that the Association could take matters up with Staff Services.  
75.  
Commander Boisseau confirmed that he had seen a version of the script for the  
interviews and when asked about the direction to consult Employee Relations he stated that he  
thought employees “had already gone through Employee Relations”. His understanding was that  
he was to determine whether the employee had complied, and that Staff Services would consider  
any explanation a non-compliant employee offered.  
The Expert Evidence  
Dr. Peter Juni  
76.  
Dr. Peter Juni attended the hearing on May 12, 2022. He was then the Scientific Director  
of the Ontario COVID-19 Science Advisory Table and the Director of the Applied Health Research  
Centre at the Li Ka Shing Knowledge Institute of St. Michael’s Hospital. Dr. Juni holds a Tier 1  
Canada Research Chair in Clinical Epidemiology of Chronic Diseases and is also a Professor of  
Medicine and Epidemiology at the Department of Medicine & Institute of Health Policy,  
Management and Evaluation at the University of Toronto.  
77.  
Counsel for the Association cross-examined Dr. Juni with reference to his expert report  
delivered to the City on April 1, 2022.  
78.  
Having noted that he had been asked to opine “on the value and benefits of a mandatory  
COVID-19 vaccination policy for employees of the City of Toronto” and “on the safety and  
effectiveness of COVID-19 vaccines currently available in Ontario”, Dr. Juni’s report (excluding  
a myriad of supporting references) included the following significant elements:  
4.  
My opinion is that vaccination is by far the best way to ensure the protection  
of City of Toronto employees and members of the public with whom they interact  
from contracting and/or transmitting SARS-CoV-2, the virus causing COVID-19, as  
well as preventing Long COVID, hospital admissions, ICU admissions and deaths  
from COVID-19 in City of Toronto employees. My opinion is that the COVID-19  
vaccines currently approved and in use in Canada are safe for use by all persons  
(other than the very small number who are contraindicated because of an allergy to  
one of the COVID-19 vaccine ingredients, or some other rare conditions), and that  
vaccines are the most effective way to reduce the risks of COVID-19.  
8.  
In December of 2020, Health Canada approved vaccines for the  
immunization of Canadians against COVID-19. This was a monumental event,  
providing a key tool in protecting our population against infection and related serious  
consequences, including admission to hospital wards and intensive care units and  
death from COVID-19, and in reducing the spread of COVID-19.  
9.  
Multiple trials and observational studies, which I have read and appraised,  
clearly indicate beyond any reasonable doubt that COVID-19 vaccines administered  
in Canada are both safe and effective.  
27  
12.  
Vaccine effectiveness was maintained for the Alpha variant that caused the  
third wave, and for the Delta variant that caused the fourth wave in Ontario. For all  
strains of the SARS-CoV-2 virus that were dominant in Ontario before December  
2021 (the original SARS-CoV-2 virus, the Alpha and Delta variants), a vaccinated  
person was therefore much less likely to transmit COVID-19 to others, including  
unvaccinated children and vulnerable persons.  
13.  
At the end of November 2021, the Omicron variant was detected in Ontario,  
and quickly became the dominant variant in the province. Omicron is extremely  
transmissible and spreads much faster than the original strain and previous variants.  
Unfortunately, Omicron is also better at evading the immune system and therefore  
vaccine protection against infection with 2 doses of an mRNA vaccine has been  
reduced significantly with Omicron. Despite this, as of March 31, 2022, the  
estimated daily rate of reported cases per million amongst unvaccinated Ontarians  
was 252.3, whereas the estimated daily rate of reported cases per million amongst  
Ontarians vaccinated with at least two doses of a COVID-19 vaccine was 168.1. This  
represents a 33.4% reduction in risk of infection associated with vaccination with at  
least two doses.  
18.  
At least 2 doses of a COVID-19 vaccine continue to be effective in reducing  
the risk of hospital admission, ICU admission and death also after Omicron became  
dominant in Ontario and globally. As of March 30, 2022, the estimated number of  
COVID-19 cases in hospital per million amongst unvaccinated Ontarians was 226.4,  
whereas the estimated number of COVID-19 cases in hospital per million amongst  
Ontarians vaccinated with at least two doses of a COVID-19 vaccine was 45.2. This  
represents a 80.0% reduction in risk of hospitalization associated with vaccination  
with at least two doses. The estimated number of COVID-19 cases in intensive care  
per million amongst unvaccinated Ontarians was 50.8, whereas the estimated  
number of COVID-19 cases in intensive care per million amongst Ontarians  
vaccinated with at least two doses of a COVID-19 vaccine was 8.5. This represents  
a 83.2% reduction in risk of ICU stay associated with vaccination with at least two  
doses. The reductions in the risks of hospitalization and ICU stay were even higher  
when the Delta variant was dominant in Ontario in August to November 2021: an  
average 96% reduction in the risk of hospitalization, and an average of 98%  
reduction in the risk of ICU stay. The reduction in the risk of hospital admission,  
ICU admission and death is high after two doses, and is even more pronounced after  
3 doses of a COVID-19 vaccine. In a recent analysis from Kaiser Permanente  
Southern California, the protection against hospitalization with Omicron was 84.5%  
after 2 doses of a COVID-19 vaccine, and 99.2% after 3 doses.  
20.  
There is an Omicron subvariant, BA.2, which has become the dominant  
subvariant in Denmark and is becoming dominant in Canada and globally. This  
subvariant shows increased transmissibility (spread more easily) than the original  
Omicron variant. According to a recent study performed in Danish households,  
increased transmissibility of BA.2, as compared with the original Omicron variant,  
was only seen in unvaccinated individuals, but not in individuals who had received  
2 doses of a COVID-19 vaccine, nor in individuals who had received 3 doses of a  
COVID-19 vaccine. This suggests that COVID-19 vaccination will continue to be  
important for the control of BA.2 in Ontario, not only after 3 doses were received,  
but also after 2 doses were received.  
28  
21.  
Vaccines are also safe. We know from the history of vaccines in general  
that any potential safety signals relating to a vaccine will typically be evident within  
60 days after the vaccine is administered. The Advisory Table has reviewed  
randomized trials and observational studies generated worldwide on the potential  
side effects of the vaccines, has concluded that COVID-19 vaccines administered in  
Canada are safe, and advised Ontarians to get vaccinated with at least 2 doses of a  
COVID-19 vaccine unless contraindicated as a result of a medically documented  
allergy to one of the COVID-19 vaccine ingredients, for example. Moreover, with  
respect to safety it is important to note that being vaccinated against COVID-19 is  
considerably safer than bearing the increased risk of contracting COVID-19 as an  
unvaccinated person.  
22.  
For example, the risk of myocarditis (an inflammation of the heart muscle)  
is approximately 10 times greater in unvaccinated persons who are infected with  
SARS-CoV-2 and have COVID-19 than after COVID-19 vaccination. It should be  
noted that the Delta and Omicron variants are so easily spread that it is a statistical  
certainty that nearly every Canadian who is not vaccinated will eventually contract  
one of them, or a future variant.  
24.  
On October 15, 2021, Premier Doug Ford wrote a letter to hospital  
administrators soliciting their input on the idea of mandating vaccination for all  
healthcare workers.  
25.  
On October 19, 2021, the Advisory Table issued a response entitled  
COVID-19 Vaccine Mandates for Ontario’s Hospital Workers: Response to the  
Premier of Ontario. I participated in the drafting of this document and I agree with  
its contents.  
26.  
In this report, the Advisory Table conveyed strong support for a vaccine  
mandate for hospital workers. The report indicated that there is now “conclusive  
evidence” that COVID-19 vaccines are highly effective and safe, and that the risks  
of serious side effects from vaccines are “vanishingly low”. The report also noted  
that hospital workers who remain unvaccinated are at greater risk of contracting  
COVID-19 and of being unable to work due to COVID-19, which poses a “real and  
serious threat to the health of the hospital workforce”. The same argument held true  
for City of Toronto employees for all pre-Omicron strains of the SARS-CoV-2 virus  
that were dominant in Ontario before December 2021 regarding infection,  
transmission, inability to work, Long Covid, hospitalization, ICU admission and  
death. Protection against infection, hospitalization, and ICU admission offered by at  
least two vaccine doses was considerably larger when the Delta variant was  
dominant in Ontario in August to November 2021.  
27.  
For the Omicron variant the argument continues to hold true for City of  
Toronto employees regarding Long Covid, hospitalization, ICU admission and  
death. It also continues to hold true regarding infection, transmission and inability  
to work provided that, at least 2 doses of a COVID-19 vaccine were received and  
receipt of the second dose was received no longer than 3 months ago, at least 2 doses  
of a COVID-19 vaccine were received and the vaccinated person was infected with  
SARS-CoV-2 no longer than 3 months ago, or a 3rd dose was received and the 3rd  
dose was received no longer than 3 months ago. For the control of BA.2, which is  
29  
becoming dominant in Ontario, COVID-19 vaccination will likely continue to be  
important, not only after 3 doses were received, but also after 2 doses were received.  
28.  
The Advisory Table also confirmed in its report that fully vaccinated  
individuals have a lower probability of contributing to ongoing transmission of the  
virus compared to the unvaccinated, and if infected, appear to be infectious for a  
shorter period of time compared to the unvaccinated. Accordingly, a fully vaccinated  
workforce reduces the risk of transmission to both unvaccinated people (including  
young children who are not yet eligible for vaccination) and vulnerable fully  
vaccinated people (including the elderly and/or immunocompromised, who are at  
greater risk of breakthrough infections and severe COVID-19 disease). The same  
argument held true for City of Toronto employees for all pre-Omicron strains of the  
SARS-CoV-2 virus that were dominant in Ontario before December 2021, including  
the Delta variant. For the Omicron variant, the argument continues to hold true for  
City of Toronto employees under the conditions described in paragraph 27.  
29.  
The Advisory Table concluded that a requirement for all hospital workers  
to be vaccinated against COVID-19 is an “evidence-based policy” that protects  
hospital workers, patients, and Ontarians generally. I believe that a requirement for  
all City of Toronto employees to be vaccinated against COVID-19 is also an  
evidence-based policy that protects City of Toronto employees, vulnerable  
individuals, and Ontarians generally.  
32.  
It is my view that the use of rapid antigen testing to rule out SARS-CoV-2  
infection among City of Toronto employees, even combined with the use of PPE, is  
not the most secure way to prevent and/or reduce the transmission of COVID-19.  
The use of rapid antigen testing to rule out SARS-CoV-2 infection was less effective  
than full vaccination in decreasing the risk of infection and transmission for all pre-  
Omicron strains of the SARS-CoV-2 virus that were dominant in Ontario before  
December 2021, including Delta.  
33.  
For the Omicron variant, we have additionally witnessed a decrease in the  
sensitivity of rapid antigen tests, especially in the first 1-2 days after infection, when  
people with Omicron infections are likely already infectious. We found the average  
sensitivity of rapid tests for nasal specimens with high viral concentration of people  
with Delta infection to be 81.0%, whereas the average sensitivity of rapid tests for  
nasal specimens with high viral concentration of people with Omicron infection was  
only 37.1%. Sensitivity is defined here as the proportion of Omicron infections that  
are correctly identified by a positive rapid antigen test. This has resulted in a greater  
number of false negative test results with Omicron than with previous strains of  
SARS-CoV-2. A negative test result with a rapid antigen test would therefore not  
provide a guarantee that a City of Toronto employee has not been infected with  
SARS-CoV-2, especially not with Omicron.  
34.  
Sensitivity of rapid antigen tests for Omicron infections can be improved  
through a combined specimen sampling from the back of the throat or back of the  
tongue, the inner cheek and the nose, instead of just the nose. In our Science Brief  
on rapid antigen tests for Omicron infections, we assume that this will result in a  
sensitivity of approximately 60%. In view of the currently high rate of infections in  
Ontario and this limited sensitivity, rapid antigen tests need to be done multiple times  
a week to be somewhat effective. Sampling of the back of the throat or back of the  
30  
tongue frequently triggers a gag reflex, which in turn will result in limited adherence  
with proper sample taking multiple times a week, including the back of the throat or  
tongue. Rapid antigen tests will become less effective if adherence to frequent rapid  
antigen testing of City of Toronto employees multiple times a week is less than  
100%, or if the sampling technique used is less than optimal.  
35.  
While rapid antigen tests may help with detection of infectious cases, they  
are likely insufficient for controlling spread. Successful implementation of a rapid  
antigen testing program relies on ensuring that supports are in place for all related  
activities, including distribution of rapid antigen tests, case and contact management,  
lab-based testing to confirm positive rapid antigen tests (depending on the case rate  
in Ontario), and education to ensure proper specimen taking and performance of the  
test. Additional implementation challenges include the current global supply  
shortage of rapid antigen tests, which may prevent the high frequency testing  
strategies needed to keep testing effective.  
36.  
Prior to the availability of vaccines, we were forced to rely solely on  
Protective Equipment (“PPE”) and rapid antigen testing to reduce the spread of  
COVID-19. This was far from an optimal solution.  
37.  
A Canadian study of rapid antigen testing for SARS-CoV-2 published on  
October 19, 2021 by the Journal of Clinical Microbiology evaluated rapid antigen  
testing in healthcare workers. This study evaluated a large-scale, multi-centre  
implementation of asymptomatic antigen testing of healthcare workers in continuing  
care facilities. The study found that rapid antigen tests had a high proportion of false  
positives (55.2%), consistent with a number of previous studies that raised similar  
performance concerns relating to rapid antigen tests.  
38.  
Before the Omicron waves, and in the near future, at the end of the sixth  
wave when rates of infection are decreasing, a low positive predictive value and high  
incidence of false positives can lead to operational challenges, as the need to isolate  
in response to a false-positive result can contribute to staff shortages and add further  
stress on City of Toronto employees.  
39.  
Rapid antigen tests may have reduced the risk of SARS-CoV-2 transmission  
by a factor of 4 for all pre-Omicron strains of the SARS-CoV-2 virus that were  
dominant in Ontario before December 2021, including the Delta variant, if  
adherence to testing was very high, but the COVID-19 vaccine reduced transmission  
by a factor of 5 to 6, a considerable reduction in the risk of transmission compared  
with rapid antigen testing. An additional advantage is that this reduction in  
transmission did not depend on adherence of individuals, unlike the reduction  
associated with rapid antigen testing regimes.  
40.  
For the Omicron variant, rapid antigen tests could potentially reduce the risk  
of SARS-CoV-2 transmission by a factor of 2.5. However, this assumes 100%  
adherence to the applied testing regime multiple times per week and optimal use of  
rapid antigen tests, swabbing the cheek, the back of the throat or tongue and the nose.  
Any lack of adherence with such a regime or suboptimal use of rapid antigen tests  
will reduce the effectiveness of a rapid antigen testing strategy. As any lack of  
adherence would reduce effectiveness and any such rapid antigen testing program  
would require constant oversight to ensure adherence.  
31  
41.  
For these reasons, it is my opinion that mandatory vaccination policies  
implemented by the City of Toronto present by far the greatest protection from  
COVID-19, to workers and the public, and should remain implemented.  
79.  
Under cross-examination, Dr. Juni testified that he had no input into the City’s Policy,  
its application, or its consequences. His opinion did not extend to the appropriateness of the  
enforcement consequences and those were not relevant to the opinion he had delivered.  
80.  
When asked on cross-examination about the environment in which fire fighters work,  
Dr. Juni commented that transmission of the virus can happen in a short time — over a short lunch  
or in small rooms with limited ventilation — with the result that there was a “high risk” even if  
employees were in contact for as little as fifteen minutes.  
81.  
Dr. Juni was also asked on cross-examination to confirm that his opinion did not indicate  
that other approaches to addressing COVID-19 in the workplace were not appropriate. Dr. Juni  
commented that problems encountered were attributable to difficulties humans had in sticking to  
viable practices, adding later that testing was an example of a circumstance in which it was  
“challenging to maintain adherence” to protocols. He spoke to Rapid Antigen Testing as an area  
in which adherence to protocols and requirements slip over time and Dr. Juni noted that even  
hospitals have challenges enforcing adherence to RAT requirements. He reiterated the opinion that  
RAT is not the most effective approach to combating the virus. Counsel for Local 3888 asked Dr.  
Juni how difficult it would be to monitor thirteen fire fighters for compliance with RAT protocols,  
he answered that he did not know, but they would have to be monitored directly. He said that he  
thought that would be a “logistical challenge” although not impossible.  
82.  
Questioned about the long-term efficacy of the Policy that required no more than two  
doses of a vaccine and as he had testified to the waning effects of the vaccine or, alternatively, the  
need for subsequent injections or an individual's being infected in order to have continued  
protection via vaccination, Dr. Juni referred to the high incidence of vaccination in the general  
population and in the City’s staff. Counsel put to him that there was no evidence that the Policy  
has had any significant effect in reducing transmission, infection, inability to work and  
hospitalization. Dr. Juni agreed, but added that the absence of evidence did not establish the  
absence of the desired effect and outcomes.  
83.  
As for his expressed belief12 that “a requirement for all City of Toronto employees to  
be vaccinated against COVID-19 is also an evidence-based policy that protects City of Toronto  
employees, vulnerable individuals, and Ontarians generally”, Dr. Juni agreed that he did not know  
the City’s thinking in introducing the Policy, but stated that he could supply the evidence to support  
it.  
12 Paragraph 29 of Dr. Juni’s report.  
32  
Dr. Vinita Dubey  
84.  
In addition to her role as the Associate Medical Officer of Health, Communicable  
Disease Control for the City of Toronto, Dr. Vinita Dubey is an Adjunct Professor at the Dalla  
Lana School of Public Health, University of Toronto and an emergency medicine physician at  
Lakeridge Health Bowmanville. As well as her Medical Doctorate degree from the University of  
Calgary, Dr. Dubey has a Master of Public Health degree from Harvard University, School of  
Public Health.  
85.  
Dr. Dubey’s will say statement was accepted as an exhibit in the proceedings and she  
was neither cross-examined nor contradicted regarding any of the following observations:13  
21.  
Over the course of the pandemic, the MOH [Medical Officer of Health] and  
TPH [Toronto Public Health] have provided detailed and updated evidence-based  
guidanceandrecommendationsinresponsetoevidence on COVID-19 and prevailing  
epidemiological trends. Workplaces have been identified as a site of COVID-19  
transmission through case and contact management investigations and outbreaks.  
Accordingly, and despite that TPH’s mandate is to provide public health advice  
rather than occupational health and safety guidance to employers, on August 20,  
2021, the MOH strongly recommended that employers implement workplace  
vaccination policies to protect their employees and the public from COVID-19. The  
MOH recommended that employers’ vaccination policies should require at  
minimum:  
a. Workers to provide proof of their vaccination series approved by  
Health Canada or the World Health Organization;  
b. Unvaccinated employees to provide written proof of a medical  
reason from a physician or nurse practitioner that includes  
whether the reason is permanent or time-limited; and  
c. Unvaccinated workers to complete a vaccination education  
course on the risks of being unvaccinated in the workplace.  
29.  
Toronto has been particularly hard hit by the pandemic and has had some of  
the highest COVID-19 case, death and ICU admission rates in the province. As of  
November 26, 2021, there were 182,909 (6,167 per 100,000) COVID-19 infections in  
Toronto, 11,671 (6.4%) were hospitalized, 2,325 (1.3%) were in ICU, and 3,713  
(2.0%) deaths were related to COVID-19. As of March 23, 2022, there were 295,730  
(9,972 per 100,000) COVID-19 infections in Toronto, 13,784 (4.7%) were  
hospitalized, 2,653 (0.9%) were in ICU and 4,129 (1.4%) deaths were related to  
COVID-19. As noted above, due to limited testing in Ontario starting in December  
2021, data with respect to number of COVID-19 infections in Toronto are likely  
under-representative of the true number of cases.  
36.  
The Delta variant was the dominant strain of COVID-19 circulating in  
Toronto from approximately July 2021 to the end of November 2021. It was  
13 Again, I have omitted Dr. Dubey’s references to her source materials.  
33  
therefore the predominant strain of COVID-19 circulating in Toronto at the time that  
the MOH issued her recommendation on August 20, 2021, that employers  
implement COVID-19 vaccination policies. It was also the predominant strain  
circulating at the time that many employers in Toronto, including the City of  
Toronto, announced their intentions to make vaccination mandatory for staff. I am  
aware that the City of Toronto announced its intention to introduce a mandatory  
vaccination policy on August 19, 2021.  
37.  
The risk of infection with SARS-CoV-2 was particularly acute with the Delta  
variant, which was more than twice as transmissible as the original strain of the  
virus. Transmission as a result of the Delta variant occurred quickly between an  
infected person and many others, especially among the unvaccinated.  
38.  
The risk of hospital and ICU admission after infection with the Delta variant  
was two to three times higher than with the original strain.  
39.  
Accordingly, Toronto Public Health continued to advise the public, and all  
those eligible for vaccinations, to receive their full vaccine series so as to prevent  
and mitigate the risks of the Delta variant and anticipated future waves of COVID-  
19. Notably, vaccines were widely available in Toronto by June or July of 2021.  
40.  
The science continued to show that vaccinations, while available, were the  
single best preventive and public health measure against the Delta variant. In  
addition, other public health and preventive measures were recommended including  
masking, physical distancing, ventilation, reducing the risk of gatherings (for  
example, by limiting the size of gatherings), preferring outdoor versus indoor  
settings, and having many layers of prevention in schools and workplaces.  
41.  
Looking at the period immediately prior to the MOH’s August 20th  
recommendation, it is notable that at the beginning of July 2021, COVID-19 cases  
began to increase in Toronto, peaking at 1,073 cases during the last week of August.  
42.  
Between July and November 2021, the effective reproductive number  
increased to a high of 1.2. A reproductive number greater than 1 means that the  
overall number of new cases is growing in a region. During this time period, there  
was an increase in community and workplace outbreaks, followed by an increase in  
school outbreaks at the start of the new school year.  
53.  
As of November 29, 2021, 85.7% of individuals 12 years of age and older  
in Torontohad been fullyvaccinated with 2 or more doses of a 2-dose vaccine series.  
Each week, this percentage continued to slowly increase. However, there were many  
who remain unvaccinated. As of March 21, 2022, 89.0% of individuals 12 years of  
age and older in Toronto have received at least two doses.  
56.  
In light of removing public health measures as we come out of the Omicron  
surge, vaccination remains the most important public health measure available to  
combat the pandemic and the illness caused by SARS-CoV-2.  
57.  
TPH is recommending vaccination for the reasons outlined below. In short,  
the vaccines approved by Health Canada have been conclusively shown to be highly  
34  
effective at protecting against severe consequences of COVID-19, and have with  
few contraindications and severe side effects. Data also demonstrates that  
vaccines may also assist in reducing virus transmission, even in the case of an  
Omicron infection (which is much more transmissible than previous variants).  
58.  
The chief purpose of any vaccine, including COVID-19 vaccines, is to  
prevent or reduce serious illness, hospitalization and death. Vaccines approved by  
Health Canada are highly effective at achieving these goals. They have been shown  
to dramatically decrease the risk for severe illness, including hospitalization and  
death from a COVID-19 infection, across the variants that have appeared to date  
including Alpha, Delta and Omicron. Fully vaccinated individuals are much less  
likely to die from COVID-19 compared to someone of similar age who is  
unvaccinated.  
59.  
Approved COVID-19 mRNA vaccines may also assist in addressing  
transmission.  
60.  
For example, in the Delta context, there was an 82% reduction in case rates  
among those fully vaccinated compared to unvaccinated in Ontario. Still, vaccinated  
individuals carried a risk of "breakthrough" infections, which are more likely to  
occur when there is a higher burden of COVID-19 infection more broadly or in  
specific settings (e.g. in a workplace or community).  
71.  
To protect workplaces and keep them safe, Public Health Ontario  
recommends that workplaces implement a "Hierarchy of Controls" as a  
comprehensive strategy to reduce the risk of COVID-19 transmission in the  
workplace. Similar to a pyramid, the most effective control, which is elimination,  
would be implemented to have the greatest impact. Elimination refers to eliminating  
the hazard (e.g., the risk of serious illness, hospitalization and death), such as through  
vaccination. The full hierarchy includes:  
Elimination: Eliminate the hazard (e.g. vaccination to reduce  
community transmission, working from home)  
Engineering: Remove/block the hazard at the source (e.g.  
physical distancing through workspace design, physical barriers  
such as plexiglass booths, ventilation/filtration).  
Administrative: Optimizing the movement of workers to  
minimize potential contact with the hazard (e.g. staggered shifts,  
breaks, and meals; work station spacing; work from home  
policies, limited hours, virtual meetings, paid sick leave,  
screening/reporting).  
Personal Hygiene: Worker actions or behaviors to reduce hazard  
exposure (e.g. clean hands, coughing or sneezing into the sleeve,  
masking for source control).  
Personal Protective Equipment (PPE): e.g. surgical/procedure  
35  
masks, gloves, eye protection, gowns or coveralls.  
73.  
In the context of the Delta variant, vaccines were the single most important  
measure to protect employees and residents of Toronto from infection,  
hospitalization, ICU admission and death due to COVID-19, as part of a  
comprehensive public health strategy.  
74.  
In the context of the Omicron variant, vaccines remain the single most  
important measure to protect employees and residents of Toronto from the serious  
consequences of COVID-19 and, as outlined above, may also help limit transmission  
of the virus both in the workplace and in the community, thereby protecting  
vulnerable persons such as those who cannot be vaccinated and those with weakened  
immune systems.  
75.  
Requiring employees to be fully vaccinated means that employers are also  
well prepared to protect their employees from future variants and/or waves of  
COVID-19. In the event a fully vaccinated employee has not received a booster dose,  
they still receive considerable protection from serious illness, hospitalization and  
death through full vaccination. In addition, being fully vaccinated means when they  
are eligible for a booster dose and receive it, they will enjoy further protection from  
that dose within 7 days.  
82.  
Experience over the course of the pandemic to date clearly demonstrates that  
COVID-19 vaccination mandates reduce vaccine hesitancy and improve vaccination  
rates.  
The City’s Submissions  
— Foundational Topics  
The City opened its submissions reminding me that this was a health and safety policy  
86.  
case in which the issue for determination is whether the Policy was a reasonable exercise of  
management discretion. Its position was that both the mandate and the enforcement mechanism  
were reasonable, and that the Association bore the onus of establishing the contrary in each  
context.  
87.  
In addition to the matter of onus, counsel for the City identified as additional  
“foundational topics” the necessity of my deferring to the discretion of management and to  
recognize the employer’s strict duty under the Occupational Health and Safety Act, R.S.O. 1990,  
c. O.1 (“OHSA”).  
88.  
The City contended that management was in the best position to assess what was  
necessary for its organization and I ought not step into its shoes to substitute other views. In that  
context I was referred to the decision of the Newfoundland Court of Appeal in Western Avalon  
Roman Catholic School Board v. Newfoundland Assn. of Public Employees, [2000] N.J. No. 206,  
2000 NFCA 39 () (“Western Avalon”) for the proposition that management were not  
required to be correct in the exercise of a reserved discretion. The essence of the ruling relied upon  
by the City was as follows:  
36  
[38]  
. . . However, this Court has not been referred to any case which would  
require management to meet a standard of correctness in the exercise of a  
discretion. Indeed, it is hard to conceive of circumstances where the exercise of  
discretion would be required to be correct in the result. So then, when the arbitrator  
stated that management’s exercise of its rights must not be inconsistent with the  
“principles and tests of correctness and reasonableness,” that was a patently  
unreasonable interpretation of the law. Even if one accepted that it was not patently  
unreasonable to require reasonableness of the employer, the question before the  
arbitrator would not have been whether the School Board made the best management  
decision. The question would have been whether the Board had made a reasonable  
decision. The arbitrator was not, under either of the approaches discussed above,  
free to substitute her view of what was the best way for the Board to implement the  
10-hour reduction in work at the school unless the Board’s decision was  
unreasonable on the doctrine of fairness or lacked the requirements of good faith and  
non-discriminatory manner on the traditional view.  
[39]  
The task of an arbitrator when examining an exercise of a discretionary  
right is different than when interpreting a collective agreement. When interpreting  
an agreement, the object of the exercise is a declaration of the intention of the parties  
as expressed in the words used in the collective agreement. The arbitrator decides  
what interpretation the parties must live with. In contrast, when examining the  
exercise of discretion by management, the object is not to have the arbitrator decide  
how the discretion should have been exercised but to determine whether  
management’s exercise of its discretion is within the range of reasonable responses  
to the circumstances, if one accepts the reasonableness test, or simply whether the  
decision was made bona fide and without discrimination, if one follows the  
traditional test.  
89.  
The City noted that Western Avalon was applied in Newfoundland and Labrador  
Teachers’ Assn. v. Western School District (Travel Allowances Grievance) [2011] N.L.A.A. No.  
8, a labour arbitration decision, in United Food and Commercial Workers, Local 1400 v. Extra  
Foods, a Division of Loblaws Inc., [2012] S.J. No. 125, a decision of the Saskatchewan Court of  
Appeal upholding an arbitration award, in Canadian Blood Services v. United Nurses of Alberta,  
Locals 155 and 411(Grievance 150422 and 15047, Shared Accommodations), [2019] A.G.A.A.  
No. 9, and in the decision of the Supreme Court of Canada in Communications, Energy and  
Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., [2013] S.C.R. 458 (“Irving  
Pulp & Paper”) in which the Court recognized the familiar tests promulgated in KVP Co. v.  
Lumber & Sawmill Worker’s Union, Local 2537 (Veronneau Grievance), [1965] O.L.A.A. NO. 2  
(“KVP”) and approved the “balancing of interests” approach by arbitrators confronted by issues  
such as those presented by the Association’s grievance.  
90.  
As for its third foundational topic — its duties under the OHSA — the City argued that  
while the Province had left the determination of vaccination policies to employers, the duty under  
clause 25(2)(h) of the statute to take every precaution reasonable in the circumstances for the  
protection of workers married with the requirement of reasonableness called for by KVP. The  
statutory obligation was recognized to apply to deal with a variety of situations not otherwise  
provided for and had led the courts to go so far as to describe employers as the “insurer of health  
37  
and safety in the workplace”. The City submitted that the circumstances inform what is reasonable  
and urged me to have close regard for the strict duty imposed by clause 25(2)(h).  
91.  
The authority relied upon by the City is the decision of the Court of Appeal for Ontario  
in R. v. Wyssen, [1992] O.J. No. 1917 (“Wyssen”). Referring to the provisions of what was then  
section 14 of the OHSA, the Court stated:  
Section 14(1) imposes on an employer what s. 14(2) properly describes as a "strict  
duty". An "employer" is obliged by s. 14(1) to "ensure" that the "measures and  
procedures" prescribed by the Regulations are carried out in the "workplace". The  
relevant definition of "ensure" in the Shorter Oxford English Dictionary, (3rd ed.) is  
"make certain". Section 14(1), therefore, puts an "employer" virtually in the position  
of an insurer who must make certain that the prescribed regulations for safety in the  
workplace have been complied with before work is undertaken by either employees  
or independent contractors.  
The duty imposed by s. 14(2)(g) is even more sweeping, requiring an employer "to  
take every precaution reasonable in the circumstances for the protection of a  
worker". The duties imposed on an "employer" by s. 14(1) and (2) are undeniably  
strict and, in my opinion, non-delegable. The legislature clearly intended to make an  
"employer" responsible for safety in the "workplace".  
92.  
Counsel for the City argued that the Court’s reference to the employer’s duties being  
“non-delegable” established that the City’s obligations could not be passed off to its employees.  
93.  
The City asserted that the precautionary principle justified the position it had taken in  
introducing and applying the Policy. In that context, Mr. Solomon referred to the decisions of the  
Ontario Labour Relations Board (“OLRB”) in Ste. Anne’s Country Inn and Spa v. A Director under  
the Occupational Health and Safety Act, 2020 64749 (ON LRB) and in United Food and  
Commercial Workers Canada, Local 175 v. Hazel Farmer, 2020 104942 (ON LRB)  
(“Hazel Farmer”), an appeal seeking the application of clause 25(2)(h) of the OHSA to have the  
Board direct a nursing home to install a plexiglass barrier at its nurses’ workstation.  
94.  
The Board in Hazel Farmer tied the precautionary principle to the pandemic, noting as  
follows:  
37.  
In the specific context of the COVID-19 pandemic, section 25(2) (h) gives  
effect to the precautionary principle that there is an obligation to take all reasonable  
measures in the circumstances to protect the health and safety of workers. In the  
context of an epidemic caused by a new and previously unknown virus, the  
precautionary principle was given voice to by Mr. Justice Campbell following the  
SARS crisis in Ontario and was as described by Justice Morgan in Ontario Nurses  
Association v. Eatonville/Henley Place, 2020 ONSC 2467 () as follows:  
An important recommendation of the Commission of Inquiry chaired  
by Justice Archie Campbell in the wake of the SARS outbreak of 2003  
– an outbreak of a virus related to COVID-19 - is that the precautionary  
principle is to be put into action in order to prevent unnecessary illness  
38  
and death. As explained by Justice Campbell, this principle applies  
where health and safety are threatened even if it cannot be established  
with scientific certainty that there is a cause and effect relationship  
between the activity and the harm. The entire point is to take  
precautions against the as yet unknown.  
95.  
Counsel also noted that the Board in Hazel Farmer had regard for the parties’ references  
to the same hierarchy of hazard controls applied here by Ms. Anderson and the City, and the  
proposition that clause 25(2)(h) of the OHSA gives effect to the precautionary principle relied on  
by the City.14  
— Key Submissions on the Merits  
96.  
In its “key submissions on the merits”, the City first argued that “mandating vaccines  
for fire fighters is a reasonable health and safety precaution in all of the circumstances”.  
97.  
Mr. Solomon reviewed those circumstances extensively — including recognition of the  
pandemic as a “once in a century” global event, to the state of emergency declared by Toronto’s  
Mayor, the persistence of variants of concern as testified to by the expert witnesses, and  
transmission data in TFS and the City’s broader workforce.  
98.  
In short, the City contended that the Association’s position regarding the numbers and  
timing of infections in the TFS relied upon flawed premises that the justification for the mandate  
turned on the percentage of workplace participants and infections and that an employer is required  
to wait for those numbers “to be bad enough to justify its taking action”. Those positions did not  
accord with OHSA’s clause 25(2)(h) and the fact that the Policy applied to all City employees,  
many of whom were reflected in the exposure and infection data submitted in evidence. Moreover,  
the nature of the fire fighters’ roles and conditions — living in congregate settings twenty-four  
hours at a time — were said to amply justify the mandate.  
99.  
In keeping with the precautionary principle, Mr. Solomon asserted, the City had adopted  
the Policy and applied it “universally” because it was the most effective risk reducing measure,  
while all of the other precautions and requirements (even though not a substitute for vaccination)  
were continued in place.  
100.  
Relying on the scientific evidence that vaccines are safe and effective, the City argued  
that vaccination was the single, most important protective measure and the only elimination control  
that can protect employees against the risks of contracting and transmitting the virus, hospital  
admissions, ICU admissions, and death. The expert evidence established the “very high degree of  
protection” enjoyed by the vaccinated while the recent lifting of public health restrictions resulted  
in “the risk for an unvaccinated person to get infected had never been greater during the entire  
pandemic”. Moreover, counsel submitted that obtaining the two doses required by the Policy “set  
the workforce up to be well protected in the face of future waves and variants”.  
14 Hazel Farmer, at paras. 20 and 36-37.  
39  
101.  
The City observed that while its Policy did not require employees to have booster  
vaccination, it had apprised employees of COVID-19 vaccine third dose eligibility in early  
December 2021 and had encouraged them to get a third dose as soon as possible. Counsel observed  
that employees could not be “boosted” without first having the two doses required by the Policy.  
102.  
In sum, the City's position was that the evidence was overwhelming in establishing that  
vaccination was the best protection during the Delta wave in which the Policy was introduced.  
103.  
The City contended that the enforcement mechanism for its mandate was shown to have  
been necessary in order to get a number of fire fighters to comply with the Policy. Counsel referred  
to the evidence that fifteen fire fighters initially suspended for non-compliance subsequently  
complied with the Policy, avoided termination, and were reinstated. Moreover, five others had  
provided proof of compliance at the meetings held to review their status; they continued on staff  
and on shift.  
104.  
Mr. Solomon referred to the evidence of Dr. Dubey (at paragraph 82 of her will say):  
“Experience over the course of the pandemic to date clearly demonstrates that COVID-19  
vaccination mandates reduced vaccine hesitancy and improved vaccination rates.” For his part, Dr.  
Juni commented on cross-examination that vaccination rates increased when vaccination passports  
were introduced. Accordingly, it was submitted, I should accept that the mandate increased  
compliance. Given the experience in TFS — with thirteen of approximately three thousand fire  
fighters terminated due to their non-compliance — it was to be concluded that the City’s mandate  
had a dramatic effect on TFS employees’ uptake of vaccination in 2021.  
105.  
The City maintained that, in the context of its obligations under the OHSA, the mandate  
was a reasonable precaution that it was duty bound to implement. I was reminded of the  
considerations testified to by Ms. Anderson and admonished not to interfere with the Policy as it  
emerged from the process she described. The Policy was characterized as a reasonable precaution  
in the context of the extraordinary circumstances of the pandemic and the fire fighters’  
environment.  
106.  
The City’s second key submission was that it “reasonably concluded that employees  
found to have failed to comply engaged in culpable misconduct warranting a disciplinary  
response.”  
107.  
The City’s evidence included documented discipline imposed on employees for breach  
of health and safety policies. Mr. Solomon argued that employees do not have discretion to decide  
not to comply with health and safety policies and referred to Wyssen for the Court’s statement of  
the employer’s duties under what is now clause 25(2)(h) of the OHSA being “non-delegable”. In  
that context, the City cited the decision in Canadian Airlines International Ltd. v. C.U.P.E., Local  
4045, 2000 CarswellBC 3152 (“Canadian Airlines”). The employer had dismissed the grievor  
because he had stowed away in a lavatory during a flight. The passage relied upon by the City is  
as follows:  
38.  
Safety in the Commercial Aviation Industry is paramount. The public  
expects the highest standards, and employees, who have direct responsibility for  
these high standards, must be the first to obey and enforce them. A breach of these  
40  
standards does not fall within the “no harm, no foul” rule. In other words, simply  
because nothing actually went wrong, one is not free to argue that little or no  
discipline ought to be the result. These safety standards are crucial, and simple non-  
compliance is grounds for discipline. A gross or serious safety violation warrants  
serious discipline up to and including discharge. Therefore, the Employer’s response  
in this case, is in my view, presumptively the correct response.  
108.  
The City also referred to Island Tug and Barge Ltd. and CMSG (Reid), 2012  
CarswellNat 5503 (“Island Tug”), an arbitration of a grievance regarding the dismissal of an  
employee for smoking while a fuel barge was unloading. The City relied on paragraph 76 in which  
Arbitrator Lanyon agreed that the grievor's conduct amounted to a “gross safety violation” which  
warranted discipline up to and including discharge, adding: “The Employer's response is therefore  
presumptively a correct one.” He continued:  
As I stated in Lamar Lake Logging v. U.S.W.A., local 1-2171 [2008, 174 L.A.C.  
(4th) 118 (B.C. Arb.)], June 25, 2008 (Lanyon) more severe penalties may be  
imposed in respect to infractions concerning health and safety matters. In such  
circumstances progressive discipline gives way to the seriousness of any breach of  
health and safety regulations, and as a result, general deterrence is given greater  
weight.  
109.  
Mr. Solomon cited Bakery, Confectionery, Tobacco Workers and Grain Millers  
International Union, Local 364T v. Imperial Tobacco Canada Ltd. (Lambert Grievance), [2001]  
O.L.A.A. No. 565 (“Imperial Tobacco”), an arbitration of a grievance regarding the dismissal of  
an employee for a safety violation involving the misuse of an air gun nailer that resulted in the  
injury of a worker. Arbitrator Lynk offered the following frequently referred to observations:  
27.  
In cases involving the discipline or dismissal of an employee for a safety-  
related infraction, the arbitral case law establishes a number of guiding principles to  
judge the appropriateness of the punishment. A non-exhaustive list of the pertinent  
principles would include the following:  
1. Safety in the workplace is both a stringent statutory obligation and an important  
industrial relations concern that involves employers, unions and employees.  
Given the potential consequences, safety infractions are among the most serious  
of workplace offences.  
2. As the industrial relations party with the pre-eminent control over the workplace,  
the employer has a legal obligation to provide a safe and secure workplace for its  
employees. Hand in hand with this obligation is the employer's authority to insist  
that workers perform their duties in a safe and efficient manner.  
3. Workplace misconduct arising from deliberate, reckless, or negligent behaviour  
and which results in a potential safety threat or an actual injury is grounds for  
significant discipline, up to and including dismissal.  
4. There does not have to be a physical injury or actual harm to establish the  
seriousness of the incident.  
41  
5. The mitigating circumstances that an arbitrator will consider in a safety discipline  
case are those accepted disciplinary elements as listed in Steel Equipment Co.  
Ltd. (1964), 14 L.A.C. 356 (Reville) and William Scott and Co. Ltd. [1977] 1  
Can L.R.B.R. 1 (B.C.L.R.B.). In any particular safety-related offence, the most  
important mitigating factors are those that will address the probabilities of the  
grievor repeating the same type of offence.  
6. Safety rules have to build in the concept of the duty to accommodate. These rules  
have to ensure that, while they may be stringent and demanding, they are also  
they also incorporate concepts of equality that eliminate all forms of  
discrimination.  
110.  
The City also cited the decision in City of Calgary and CUPE, Local 709, 2021  
134634 (AB GAA) (“City of Calgary”) in which one of the grounds for the discharge of the grievor  
was his failure to comply with a directive to wear steel-toed boots. The union acknowledged that  
the failure to comply with the directive constituted insubordination. The arbitrator concluded that  
the grievor’s “rehabilitative potential is very low if he was to be reinstated” and that the grievor’s  
long service did not outweigh the factors supporting his discharge.  
111.  
The decision in Hodgkin v. Aylmer (Town), 1996 CarswellOnt 4343 (“Aylmer”), was  
relied on by the City as an example of a civil judgment upholding the termination of an employee  
for his persistent refusal to comply with the requirement that he shave his beard in order to be able  
to use respiratory equipment in compliance with CSA safety standards. The Court stated:  
55.  
In fact it is clear from the correspondence exchanged between January 1993  
and March 1993 . . . that the plaintiff did not accept the fact that it was necessary for  
a person responding to an ammonia leak with self-contained breathing apparatus to  
be clean shaven. The plaintiff then continued to stand by his position that he was the  
individual who should respond to an ammonia leak and took the position that it was  
possible to purchase appropriate equipment to allow him to do so without being  
clean shaven.  
56.  
I consider the plaintiff's conduct incompatible with his duties and going to  
the root of his employment contract with the result that the employment relationship  
was too fractured to expect the employee to be provided a second chance. . . .  
112.  
Similarly, the City argued, it was reasonable for it to conclude that the employment  
relationship with a fire fighter who refused to comply with the Policy was at an end.  
113. The City relied on Hunter Rose Co. v. G.A.U., Local 28B, 1980 CarswellOnt 1217  
(“Hunter Rose”), for its identification of the bases for disciplinary action in response to  
insubordination, one of the offences relied on in the City’s suspension and termination letters  
issued to non-compliant fire fighters:  
22.  
Insubordination is a common type of disciplinary action in labour relations  
matters and is considered to be of a serious nature because it strikes at the very heart  
of an employer’s prerogative; the right to manage. Generally, it is felt that the right  
to order employees to carry out work activities without debate or action which causes  
a loss of respect is essential to the role of management. In order to constitute  
42  
insubordination in law, it has been held that there are three essential components  
which must be present in the proven version of events. First, there must be a clear  
order understood by the Grievor; see Re Holland Hitch, 23 L.A.C. 378 (Brant, 1972).  
Second, the order must be given by a person in authority over the Grievor; see  
Municipality of Metropolitan Toronto, 21 L.A.C. 330 (H.D. Brown, 1970). Finally,  
the order must be disobeyed; see Re Holland Hitch, supra.  
114.  
The City further submitted that it was reasonable for it to adopt a consistent enforcement  
framework — that is, the disciplinary suspension followed by the discharge for cause of non-  
compliant fire fighters — and that the framework was reasonable in all of the circumstances.  
115.  
Mr. Solomon reminded me that I was not dealing with an assessment of the presence or  
absence of just cause for the discharge of any of the affected fire fighters, but with the  
reasonableness of the Policy and of the mechanisms chosen for its enforcement.  
116.  
In that context, counsel referred to Arbitrator Misra’s decision in Chartwell Housing  
REIT v. Healthcare, Office and Professional Employees Union, Local 2220, UBCJA (Mandatory  
Vaccination Policy Grievance), [2022] O.L.A.A. No. 53, (“Chartwell”); Arbitrator Herman’s  
decision in Bunge Hamilton Canada, Hamilton, Ontario and United Food and Commercial  
Workers Canada, Local 175, 2022 43 (ON LA) (“Bunge Hamilton”); and Arbitrator  
Wright’s decision in Unifor Local 973 v. Coca-Cola Canada Bottling Limited, 2022 25769  
(ON LA) (“Coca-Cola”).  
117.  
The City characterized the disciplinary process adopted for the Policy as demonstrating  
a consistent approach to its enforcement that was fair, just and reasonable. It contended that it  
would be unfair to leave decisions regarding enforcement of the policy to hundreds of managers  
operating in some forty City divisions and that the scripted approach and instructions provided to  
managers evidenced a serious and deliberate effort to be fair and consistent in the enforcement  
while ensuring that individual cases were addressed. Managers were instructed to ask employees  
to explain why they had not uploaded proof of vaccination by the deadlines established by the  
City. Those managers were instructed to consult if they believed that an explanation required  
further investigation.  
118.  
The City noted again that there were five cases arising in the meetings held in which  
fire fighters had provided proof of vaccination and had returned to work. There were fifteen  
additional cases in which fire fighters — having complied with the Policy — were ultimately  
returned to work. The City terminated the employment of the rest and counsel invited me to  
conclude from the documented meetings that the reasons offered by those individuals for their  
non-compliance were neither compelling nor reasonable.  
119.  
The City argued that the “very unique” disciplinary response fashioned by Mr. Milloy  
was appropriate in a global pandemic in which it was judged that it was unsafe for employees who  
were unvaccinated to attend the workplace; however, the City stressed that while employees who,  
without reasonable excuse, did not comply were not eligible to work there was no immediate  
termination and no suspension of a predetermined duration with the result that the consequences  
were argued to be flexible and self-regulated as they were under the control of the individual  
employee.  
43  
120.  
Mr. Milloy had testified that a very important health and safety policy was at issue and  
that failure to comply without a reasonable excuse constituted very serious misconduct for the  
grounds set out in the City’s disciplinary letters. Mr. Solomon submitted that Mr. Milloy and the  
City had turned their minds to seniority and the relevance of an employee's record, but had  
concluded that neither would mitigate a failure to comply with the Policy. Rather, employees  
would be guilty of serious misconduct in their deliberate and ongoing failure to comply.  
Employees had been given a long period in which to consider their positions and achieve  
compliance. It was left to them to decide whether they would remain on a disciplinary suspension  
for the full period to which they were exposed. It was reasonable for the City to conclude that,  
after all of that, an employee was permanently committed to a position, and would never comply  
with this health and safety mandate. Accordingly, the City considered that the employment  
relationship would be at an end and, again, that an employee’s seniority and record as an employee  
could not mitigate the wrongdoing of non-compliance with the Policy.  
121.  
In contrast, the City considered a non-disciplinary leave without pay to be an  
inappropriate response as there would be no reason to conclude that an recalcitrant employee  
would ever conform.  
122.  
In contending that it had adopted a consistent enforcement framework, the City  
addressed the variation in the language used to advise employees of the effects of non-compliance  
with the Policy. The first expression when the Policy was announced was that employees who did  
not comply with it “may be subject to discipline, up to and including dismissal.” The message  
from the City Manager on October 6, 2021 (dealing with “next steps regarding the enforcement of  
the policy”) was that employees who had not received both doses “will be suspended for six weeks  
without pay” starting the week of November 1, 2021. The City Manager’s message continued to  
indicate that after the unpaid suspension non-compliant employees “will be terminated for cause  
as they will have chosen not to comply with the mandatory vacation policy.”  
123.  
The language regarding the suspension phase changed in the message from the City  
Manager on November 1st — it used “may be” rather than “will be” in speaking to the employee’s  
being suspended “for up to six weeks without pay” — but the second piece remained the same as  
it stipulated: “if staff members do not provide proof of receiving both doses of a COVID-19  
vaccine, their employment will be terminated for cause as they will have chosen not to comply  
with the mandatory vaccination policy.”  
124.  
Mr. Solomon argued that the language of those communications did not support the  
Association's position that there was no bona fide process in place. The City maintained that the  
language was important to communicate consequences to employees and reminded me that Mr.  
Milloy had testified that managers were expected to apply fundamental principles of labour  
relations concerning the application of discipline.  
125.  
Mr. Solomon urged me to look to “what had happened on the ground” rather than the  
language in the communications in assessing the reasonableness of the City's enforcement  
mechanisms. The reality, it was suggested, was that employees were provided with a process in  
which they had an opportunity to make a case to the Employer and the City maintained that there  
44  
was no evidence from the Association to establish that the process was unfair. Again, the City  
insisted that it acted reasonably in adopting a consistent enforcement mechanism.  
126.  
The City's fourth key submission on the merits was that the balancing of interests under  
the Policy — taking into account the Employer’s compelling interest in and duty to protect  
employees from COVID-19 in contrast to an employee's individual interest — clearly favoured  
the Employer’s position.  
127.  
In that context, counsel for the City reviewed a substantial number of the cases that have  
been decided in relation to employers’ varying approaches to the COVID-19 pandemic and the  
protection of employees. The City noted that arbitrators have overwhelmingly determined that the  
interests of the employer prevail. In an exception, the early decision in Electrical Safety Authority  
and Power Workers Union, 2022 343 (ON LA) (“ESA”), Arbitrator Stout concluded:  
[5]  
After carefully considering the parties’ submissions, I find that the ESA’s  
current Vaccination Policy is unreasonable to the extent that employees may be  
disciplined or discharged for failing to get fully vaccinated. It is also currently  
unreasonable to place employees on an administrative leave without pay if they do  
not get fully vaccinated. However, that may change as the situation unfolds in the  
coming weeks and months. I do not find it to be unreasonable for the ESA to require  
employees to confirm their vaccination status if the personal medical information is  
adequately protected and only disclosed with their consent. (emphasis added)  
The City distinguished the ESA ruling on several factual bases, not the least of which was that the  
award recorded that “the vast majority of the work that is undertaken by ESA employees has been  
effectively undertaken remotely”. That was not the case for virtually all of the fire fighters here.  
128.  
Mr. Solomon argued that Ontario Power Generation and The Power Workers Union,  
(unreported, November 12, 2021) (“Ontario Power Generation”) supported the City’s position.  
There Arbitrator Murray dealt with several issues, one of which touched on the treatment of  
employees who were unvaccinated or who refused to disclose their vaccination status and who  
would not agree to undergo COVID-19 testing. Arbitrator Murray noted that the employer had  
indicated its intention to place some employees on an unpaid leave of absence and opined as  
follows:  
. . . In this situation, where most employees have been vaccinated, and virtually all  
the rest are willingly participating in the reasonable alternative of Regular Rapid  
Antigen Testing, employees who refuse to do either can be sent home on an unpaid  
leave pending completion of the discipline process.  
. . . Unlike other occasions when the Company sends someone home pending  
potential discipline, in these circumstances, it is completely within the control of the  
employee to decide when to come back to work. All they need to do is to agree to  
participate in the Rapid Antigen Testing program which is designed to reduce the  
risk they present to their fellow employees by remaining unvaccinated — a test that  
has been endorsed by the Chief Medical Officer of Health and other appropriate  
authorities as being safe and effective. I view this as sensible [sic] and necessary part  
of a reasonable voluntary vaccination and testing program.  
45  
. . .  
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 [sic] have  
made a decision to end their career with this Company.15  
129.  
In Bunge Hamilton, Arbitrator Herman dealt with a grievance in which the union  
asserted that the employer’s COVID-19 vaccination policy “violates employee personal  
privacy/personal information and employee privacy rights”. The employer was obliged under the  
terms of its property lease with Hamilton Oshawa Port Authority (“HOPA”) to conform to a  
vaccination policy that required “all employees of companies located at the port . . . to be fully  
vaccinated by January 24, 2022” and, further, that employees were to provide attestation of  
vaccination via HOPA’s website. If employees failed to comply with the attestation requirement,  
the HOPA policy would not permit their entry onto its property until such time as they could attest  
to their being fully vaccinated. The employer incorporated the attestation requirement in the policy  
it applied to its employees.  
130.  
Arbitrator Herman found the requirement to disclose vaccine status to be reasonable.  
He explained that “management can generally establish rules that require the production of  
employees’ medical information if necessary in order to protect the health and welfare of other  
employees, which would be the case here”. He added that “vaccinated employees working at the  
facilities and others who entered those facilities from time to time are entitled to be aware of  
whether unvaccinated persons are working on site and within their vicinity.” Moreover, he  
considered “the intrusion upon an individual's privacy with respect to the disclosure of personal  
health information” to be “relatively minimal”, adding “employees are only being asked to reveal  
their vaccine status, and nothing more concerning their personal health”. Arbitrator Herman also  
noted that, since they were required to be fully vaccinated in order to enter the property, employees  
would be aware of individuals’ vaccine vaccination status if they were continuing to work after  
January 24, 2022. He commented that the vaccine policy of the employer provided a reasonable  
period of time for employees to attest to their status and that the disclosure was limited to Facility  
Manager and HOPA.16  
131.  
The City cited Hydro One Inc. and Power Workers Union (unreported, January 31,  
2022) (“Hydro One Inc”) for the following by Arbitrator Stout:  
15 The decision is unpaginated and the paragraphs were not numbered. These appear on the fifth page of the text.  
16 Bunge Hamilton, at para. 24.  
46  
[11]  
I am also of the view that prohibiting employees from attending work if they  
do not provide proof of vaccination or a negative COVID-19 RAT is fair and  
reasonable in the circumstances of this pandemic. Hydro One is complying with their  
obligations under the Occupational Health & Safety Act, to take reasonable  
precautions to protect the health and safety of their employees and the public that  
they serve. The policy is a reasonable compromise that respects employee rights and  
balances the various important interests.  
132.  
The City also referred extensively to the decision of Arbitrator Mitchell in Power  
Workers Union v. Elexicon Energy Inc., 2022 7228 (ON LA) (“Elexicon”).  
133. Arbitrator Mitchell summarized his rationale for upholding the employer’s policy  
requiring vaccination by its employees to be reasonable in the circumstances of the case —  
“particularly as it requires a small minority of unvaccinated employees to become vaccinated with  
three doses of the vaccine and requires the large majority of employees with two doses of the  
vaccine to become vaccinated with the third or booster dose” — as follows:  
6.  
To summarize, the first essential reason for my finding is that all employees  
have the right by law to a safe workplace and the Employer under the law has a duty  
to take every reasonable precaution in the circumstances to that end. Here vaccinated  
employees are at