This is an update to our blog originally posted on July 6, 2021.

There is no federal or provincial legislation requiring eligible individuals to be vaccinated against COVID-19. However, employers may impose their own vaccination policies as part of a good faith effort to follow public health guidance, stop the spread of COVID-19 and protect their business interests. Whether these policies are enforceable is a question which must be decided by the courts—but they have yet to do so. Labour arbitration decisions provide insight as to which policies may be reasonable and in which circumstances.

It is likely that employer policies with respect to COVID-19 will be enforceable only where reasonable in the full context of all the facts and circumstances. Mandatory vaccination for employees may be reasonable in high-risk circumstances, while the same policy may be unreasonable where practical alternatives exist. Conditions with respect to testing and other restrictions for unvaccinated employees are also likely reasonable. A policy will likely be enforceable only where it is carefully custom-tailored to the particular facts and adaptable to the circumstances of the workplace and the employees. There may be consequences for employees who breach their employer’s vaccination policy.

Facts and circumstances are dynamic. The shifting conditions of the pandemic—such as the emergence of the Omicron variant—present additional challenges and considerations for employers. Dynamic facts demand constant vigilance to ensure that policies are adaptable and reflect the circumstances of the day.

Background

Employers have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act.[1] By law, an employer must take every reasonable precaution to maintain a safe working environment.[2] These steps include following COVID-19 public health guidance in good faith. For example, an employer may impose policies mandating physical distancing, masking, screening—and vaccination.

In Ontario, there are statutory protections for liability as a result of potential exposures or infections to COVID-19 so long as that person was making “a good faith effort to act in accordance with public health guidance,” pursuant to Supporting Ontario’s Recovery Act.[3] Under the Recovery Act, “person” includes “any individual, corporation or other entity.”[4]

However, the Recovery Act excludes protections for many employers; i.e., any employer in a schedule one or two industry (as defined by the Workplace Safety and Insurance Act). This specification is broad and nearly all-encompassing. These employers do not enjoy statutory protections from their employees for COVID-19 liability.[5] Therefore, it is possible that an employee who becomes infected with COVID-19 in the course of their employment may be able to sue their employer—even if that employer was making a good faith effort to follow public health guidance. These statutory protections and exclusions have not yet been tested by the courts.[6] The court will ultimately need to determine whether the employer took all reasonable steps in the circumstances to prevent a COVID-19 outbreak in the workplace.

Public Advice About COVID-19 Vaccines

According to the World Health Organization, there are “safe and effective vaccines that prevent people from getting seriously ill or dying from COVID-19.”[7] Its advice is to “take whatever vaccine is made available to you first, even if you have already had COVID-19.”[8] The Canadian National Advisory Committee on Immunization “strongly recommends a complete mRNA COVID-19 vaccine series” for all eligible persons.[9] As per Health Canada, “vaccination is one of the most effective ways to protect our families, communities and ourselves against COVID-19.”[10]

The courts have taken judicial notice of the fact that “all responsible medical authorities, without exception, have urged people to become inoculated.”[11] While misinformation abounds, myths and disinformation about COVID-19 vaccines have been debunked.[12] The court has also noted that some of the spread of this misinformation is deliberate and malicious.[13]

Not everyone can be vaccinated; e.g., for medical reasons or upon other protected grounds pursuant to the Human Rights Code.[14] Others may be hesitant, while some may make a personal choice to remain unvaccinated based on their individual, sincerely-held beliefs and preferences. Depending on the reason, the individuals may or may not be entitled to accommodation.

Enforceability of Workplace Policies
(Testing, Restrictions, Vaccination, and Disclosure of Vaccination Status)

“I’m strongly recommending that local employers establish a workplace vaccination policy to protect workers, their families and our communities.”[15]
– Dr. Eileen de Villa, Toronto Medical Officer of Health (August 20, 2021)

Courts recognize that health units and medical officers (like Dr. de Villa) should be afforded “significant deference.”[16] In light of this recommendation, an employer might conclude that requiring all employees to be vaccinated is an “obvious and simple” step to prevent exposures, infections, or an outbreak in the workplace.[17] However, such an argument places the interest of health and safety on a collision course with the human rights and other interests of employees, such as privacy and bodily integrity. Courts will need to decide how to draw the line between these competing interests.

At present, there is no case law from the civil courts. In the case of unionized workplaces, courts have held that unionized plaintiffs lack standing to challenge the enforceability of an employer’s vaccination policy in court.[18] In sum, this dearth of judicial opinion means that there is still no clear and specific guidance from the civil courts for employers who seek to draft an enforceable workplace policy with respect to COVID-19.

However, labour arbitration decisions (“awards”) for unionized workplaces may provide some about how courts may eventually evaluate the merits and enforceability of employer vaccination policies.[19]

In general, arbitral awards focus on the facts. Awards are the result of balancing the competing interests using a highly contextual approach, taking care to evaluate the particular circumstances of each case. Arbitrators look for specific details about dangers, hazards, and how certain problems may interfere with business.[20] Other important factors could include the nature of the business, the type of workplace, the kinds of services offered, and the characteristics of the employees. At the same time, arbitrators remain alive to the issue that facts and circumstances are dynamic and subject to change—evolving along with the shifting conditions of the pandemic (e.g., the emergence of the Omicron variant).

Ultimately, arbitral caselaw has shown that policies will be enforced where they are reasonable in the circumstances. An enforceable policy will likely be prudent, strike the right balance between interests, appropriately mitigate actual risks, and reflect the practical realities of the day. In general, an enforceable policy will likely be custom-tailored to suit the parameters and realities of the workplace, and the work of the employees (i.e., it is not a policy which is “one size fits all”).

There are four types of policies which have been considered by labour arbitrators thus far: testing, restrictions, vaccination, and disclosure of vaccination status.

Testing

In Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada—prior to the availability of vaccines—the employer, a nursing home, required all employees to be tested every two weeks or else be subject to discipline; i.e., be “held out of service.”[21] The testing would be conducted by the employer on-site. The union contended that testing seriously breached the employees’ right to privacy and dignity. The employer asserted that it was upon request from or upon recommendation by the Province of Ontario.

It was decided in Caressant that testing all employees under this timetable was reasonable. A nursing home is a contained environment and COVID-19 is often deadly for the elderly. The goal of clearly controlling COVID-19 infection in that environment outweighed the minimal intrusion of a test.

In Unilever Canada Inc v UFCW Local 175, the employer, a food manufacturing facility, required all employees to be tested every week.[22] No specific penalty for noncompliance was specified. The union contended that the policy breached the collective agreement and the Human Rights Code. The employer disagreed and maintained that its testing policy was reasonable.

The arbitrator determined that testing all employees under this timetable was reasonable. Even where there was no evidence of transmission, the arbitrator decided that it was prudent to exercise caution given the nature of the workplace, which is governed by a variety of food safety regulations.

In Ellisdon Construction Ltd v LiUNA Local 183, the employer, a construction contractor, required all employees to be tested twice per week or else not be permitted to access the worksite.[23] The testing would be performed on-site. The union claimed that employees had concerns that the testing was experimental, invasive, and unreliable. The employer contended that the safety of the workplace and of the general public was at risk.

It was decided in Ellisdon that testing all employees under this timetable was reasonable. Given the fact that the residential construction industry is an essential service, its workers put themselves at risk to an extraordinary threat. Further, the risk is increased by the nature of the industry; i.e., whereby workers routinely move between job sites and employers. The goal of preventing the spread of COVID-19 outweighed the intrusiveness of testing.

In Ontario Power Generation (OPG) v The Power Workers Union, the employer, a public business enterprise, required all unvaccinated employees to be tested twice per week or be subject to unpaid leave or termination.[24] The testing would be self-administered by employees, at the expense of the employer. The union contended that a termination penalty without a formal disciplinary process was unreasonable. The company asserted that it was a reasonable measure to mitigate risk.

It was decided in OPG that testing unvaccinated employees under this timetable was reasonable. This arbitral award was a “decision driven entirely by context.” In the backdrop of a global pandemic which has cost tens of thousands of lives so far in Canada, it was decided that a minimally intrusive test as a condition for returning to work was both “sensible and necessary.”

Restrictions

In OPG, supra, it was also decided that limiting access to gyms and other fitness facilities only to vaccinated employees was reasonable.[25] For some employees, physical fitness and evaluation were mandated by virtue of the physically demanding nature of their position. However, gyms are high-risk areas for transmission by their nature. Therefore, requiring employees to be vaccinated to access private fitness facilities is sensible for the same reason that the Province of Ontario requires public gym patrons to be vaccinated in order to enter.

Vaccination

Mandating vaccination may not be possible at all for certain individuals who are unable to be vaccinated. Some people cannot be vaccinated for medical reasons. Others may be entitled to vaccination exemptions pursuant to protected grounds under the Human Rights Code, such as religion or disability. Under the Code, employers have a duty to accommodate these employees up to the point of undue hardship for the employer, having regard to cost and health and safety issues.[26] Such accommodations could include testing or other alternatives. However, an employer has no duty to accommodate an employee who chooses to remain unvaccinated based on their personal choice.[27] According to the Ontario Human Rights Commission (OHRC):

Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code.
…
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship – such as during a pandemic.[28]

With respect to a workplace vaccination policy, mandating vaccination may be reasonable where risks are high and vulnerable populations require protection. It may also be reasonable where necessary to comply with an existing contractual relationship; e.g., an employment agreement, collective agreement, or lease. In contrast, it may be unreasonable where practical alternatives exist; e.g., working remotely, physical distancing, masking, screening, or testing.

In Electrical Safety Authority (ESA) v Power Workers’ Union, the employer required all employees to be fully vaccinated or be subject to discipline, up to and including termination—with allowances for bona fide exceptions.[29] Unvaccinated employees were to be subjected to regular testing. The union contended that the policy violated its members’ bodily integrity. The company argued that it was a reasonable safety precaution.

It was decided in ESA that mandatory vaccination was unreasonable. The “vast majority” of employee work was conducted effectively remotely. Consequentially, it was decided that it would be unjust to discipline or terminate employees for being unvaccinated where reasonable alternatives exist. A testing option for the unvaccinated was reasonable.

The ESA decision also affirmed that under different circumstances, mandatory vaccination policies may indeed be reasonable. For example, in contexts where the risks are high and vulnerable populations require protection. The arbitrator specifically articulated that this particular decision was not “vindication” for those who choose to remain unvaccinated; i.e., “those who continue to refuse to be vaccinated are not just endangering their health but may also placing their employment in jeopardy.”

In Power Workers Union v Elexicon Energy Inc, the employer, a hydro service provider, required all employees to be vaccinated or else they must complete “vaccine awareness training” and be placed on unpaid leave or be terminated.[30] The union supported voluntary vaccination and mandatory testing but drew the line at mandatory vaccination. It asserted that in light of the highly transmissible Omicron variant, vaccination does not prevent an infected person from transmitting COVID-19 to others.

It was decided in Elexicon that mandatory vaccination was reasonable only for employees who (a) do not work from home, or (b) do not work entirely outside. The employer is a provider of essential services and it must be assured that its workforce is capable of providing electricity to the community.[31] The fact that Omicron may be more transmissible notwithstanding vaccination does not affect the employer’s duty to be cautious nonetheless—even against unknown harms. However, for employees who exclusively work from home, mandatory vaccination was unreasonable. Likewise, it would be unreasonable for employees who work entirely outside or who can be reasonably accommodated to work entirely outside.

In Bunge Hamilton Canada v UFCW Local 175, the employer, an agricultural supplier, required all employees to be fully vaccinated or else they may be placed on unpaid leave pending a review of their employment status—with allowances for bona fide exceptions.[32] The union contended that it was unreasonable to discipline employees for being unvaccinated. The company asserted that the policy was necessary to prevent a variety of factors from materially interfering with its business, including complying with the terms of its lease.

It was decided in Bunge that mandatory vaccination was reasonable. In brief, the policy was reasonable because mandatory vaccination was already the policy of the federally-regulated organization from which the business leased property for its operations (i.e., a port authority). If the employer permitted unvaccinated employees to come on-site, it would be in breach of its obligations under its lease. Testing was not a suitable alternative within this context.

Finally, in UFCW Local 333 v Paragon Protection Ltd, the employer, a security company, required all employees to be fully vaccinated or be terminated—with allowances for bona fide exceptions.[33] The union contended that many of it members held genuine reservations due to concerns about the side effects of vaccinations. Some members objected to the choice between vaccination or termination. The company contended that this policy was supported by an existing collective agreement, and necessary as it was a “client customer-facing business” and the majority of its clients already required its employees to be fully vaccinated.

It was decided in Paragon that mandatory vaccination was reasonable. Conveniently, an article in the collective agreement mandated employees agrees to vaccinations. This provision was remarkably prescient; it was agreed to in 2015 and did not contemplate a pandemic. However, the arbitrator also concluded that the vaccination policy balanced the rights of employees, other staff, clients, and members of the public. The arbitrator noted that “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations.”

Disclosing vaccination status

In ESA, supra, it was decided that a policy requiring an employee to disclose medical information (such as vaccination status) “must be reasonably necessary and involve a proportionate response to a real and demonstrated risk or business need.”[34]

For example, in Bunge, supra, a requirement for an employee to disclose their vaccine status to the employer was held to be reasonable.[35] Specifically, such disclosure would be a minimal intrusion into the employee’s right to privacy and was considerably outweighed by “enormous public health and safety interests.”

In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (MLSE), an employee was placed on unpaid leave for failing to disclose his vaccination status.[36] The employer, a professional sports team operator, required its employees to be fully vaccinated or be placed on unpaid leave or be terminated. The employee worked at the Scotiabank Arena in close proximity with others. The employer’s policy was enacted the day after the Province of Ontario required patrons who attended events in the area to be fully vaccinated. The union did not dispute the vaccination mandate but contended that an employee’s vaccination status is private and should not be subject to disclosure. The employer asserted that being vaccinated for COVID-19 was a necessary employee qualification.

The arbitrator determined that opposing disclosure of vaccination status is akin to opposing the vaccine mandate. The arbitrator stated, “I do not see how the Employer can enforce a vaccine mandate without requiring disclosure of an employee’s vaccine status.”[37] The arbitrator decided that the policy was reasonable and the unpaid leave was an appropriate outcome.

When personal health information, such as vaccination status, is disclosed, privacy concerns must be addressed. Employers must keep the information confidential, safe, and secure. In MLSE, the arbitrator concluded that the employer had taken the appropriate steps to protect employee confidentiality.

Purpose of Workplace Policies and the Shifting Conditions of the Pandemic (e.g., Omicron)

The stated purpose of a policy may affect its reasonableness and enforceability. An employer may enact a policy with respect to COVID-19 for a variety of purposes. Such purposes may include but are not limited to: improve health and safety, promote vaccine safety education, improve workplace attendance, protect business interests or stop the spread of COVID-19.

In November 2021, the Omicron variant of COVID-19 was identified.[38] It is far more transmissible than the original virus and it is expected that it can spread to vaccinated individuals.[39] This heightened risk of transmission has caused the Ontario Chief Medical Officer of Health, Dr. Kieran Moore, to reassess even having a public vaccine passport system at all.[40] As of March 1, 2022, the vaccine passport system in Ontario will end (although businesses will be permitted to continue to use the province’s proof of vaccination system, should they wish to do so) If the purpose of an employer’s mandatory vaccination policy is to reduce the spread of COVID-19, then it could be argued that the policy lacks a rational connection to the goal in light of Omicron.

Stopping the spread of COVID has indeed been the stated purpose of many of the employer vaccination mandate policies considered in labour arbitrations to date. In Bunge, the purpose was to “prevent the spread of COVID-19.”[41] In ESA, the purpose was aimed at “limiting the risk of contracting and spreading the virus.”[42] However, other policies have considered transmission and harms, or have been more general in nature. For example, in OPG, the policy was aimed at “mitigating the risk of harm from, or transmission of, COVID-19 in the workplace.”[43] In contrast, in Paragon, the policy was to “minimize potential incidents of COVID-19 in the workplace.”[44]

While vaccinations may be less effective in preventing the spread of the Omicron variant, it is expected that vaccines will remain effective in preventing severe illness, hospitalizations, and death from COVID-19.[45] Consequentially, employers should ensure that a mandatory vaccination policy has a purpose which is rationally connected to its means. As an example, a policy which is focused on reducing the harms caused by COVID-19 may be more reasonable than a policy focused on preventing the spread of COVID-19—in light of Omicron.

However, even in light of the uncertainty of Omicron, employers should be cautious and guard against the unknown anyway. As stated in Lexicon:

The Union’s argument that there is no evidence vaccinations will be more effective in preventing the spread of Omicron, even in conjunction with testing, masking, and distancing, than those measures alone without vaccination, is inconsistent on these facts with the precautionary principle which justifies that action be taken to protect employees 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.”[46]

Nonetheless, employers should remain cognizant that there are multiple forms of harm which employees may suffer during a pandemic; e.g., mental health harms. Some employees may have mental health conditions that result in elevated anxiety towards receiving vaccination—such anxiety may amount to a disability. In the pre-pandemic era, debilitating mental health issues would have been a recognized legal disability. In the pandemic era, medical licensing bodies have restricted doctors from granting medical exemptions for vaccination on these grounds. The purpose of a vaccination policy should provide for reasonable protections and reasonable accommodations for people who may be at risk of various types of harm, including mental health harms.

As the conditions of the pandemic continue to be dynamic and continue to evolve, it would be prudent to stay up to date with public health guidance to ensure that any employer policies are continuously tailored and re-adjusted to the factual realities of the day. For example, the definition of “fully vaccinated” may evolve if more booster vaccinations become the norm, perhaps as a response to Omicron and other future variants.

Policies are neither “one size fits all,” nor are they “set it and forget it.”

Consequences for Employees who Defy COVID-19 Policies

Labour arbitrators have also considered the appropriate consequences for employees who fail to comply with COVID-19 policies, or who engage in otherwise untenable conduct in the context of the pandemic. For the most egregious violations, termination may be reasonable.

In Garda Security Screening Inc v IAM, District 140, in the very early days of the pandemic, an employee was terminated for failing to self-isolate after being tested for COVID-19, as per the policy of the employer.[47] It was concluded that the employee clearly violated the employer’s policy and public health guidance and that her actions put “countless others at risk of illness or death.”[48] The employee tested positive—after working alongside her coworkers in proximity. This termination was held to be reasonable.

In LiUNA OPDC v Aecon Industrial, an employee was terminated for providing false information in response to a COVID-19 screening.[49] The employee was experiencing symptoms and was advised that he could not attend work. However, the employee returned to work and falsely answered screening questions in the negative. Consequentially, the employee was terminated. The decision concluded that the employee’s “deliberate and cavalier attitude toward the COVID safety risks he represented both to his co-workers and in turn to the Company’s obligations to protect the workplace was unconscionable, unreasonable and totally unacceptable.”[50] This termination was held to be reasonable.

In Ryam Inc Forest Products Group Chapleau Sawmill v USW Local 1-2010, an employee was suspended without pay for three (3) months for removing his face mask in the workplace and threatened to give his supervisor COVID by pretending to spit in his direction.[51] The arbitral decision reduced the suspension to two (2) months. Although the circumstances were very serious, the employee was afforded some leeway by virtue of his four decades of service and lack of disciplinary history.

Where an employee does not comply with a mandatory vaccination policy

Whether termination for being unvaccinated or failing to comply with an employer’s policy is reasonable depends on the facts. Nonetheless, Employment and Social Development Canada has issued guidance to employers with respect to completing Records of Employment (ROE). How an ROE is completed will affect the employee’s eligibility for Employment Insurance (EI). The guidance is specifically as follows:[52]

When the employee doesn’t report to work because they refuse to comply with your mandatory COVID-19 vaccination policy, use code E (quit) or code N (leave of absence).

When you suspend or terminate an employee for not complying with your mandatory COVID-19 vaccination policy, use code M (dismissal or suspension).

If you use these codes, we may contact you to determine:

• if you had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy

• if the employees were informed that failure to comply with the policy would result in loss of employment

• if the application of the policy to the employee was reasonable within the workplace context

• if there were any exemptions for refusing to comply with the policy

Conclusion

Employers may impose policies with respect to COVID-19 as part of their statutory obligation to safeguard the health and safety of their employees. In following COVID-19 public health guidance in good faith, employers may impose policies with respect to physical distancing, masking, screening, and vaccination. However, mandating vaccination also engages the interests of employees. A balancing exercise is necessary to ensure that any intrusions upon the employee’s rights are reasonable.

Courts have not (yet) provided any guidance to employers with respect to what kind of policies will be enforceable. However, labour arbitration decisions may yield insight as to what kinds of policies will be enforced by the courts; i.e., policies which are reasonable in light of all of the circumstances. These decisions are driven by context and were highly sensitive to the particular facts of each case.

What may be reasonable in one set of circumstances may be unreasonable for another—and circumstances may change. Important factors could include the nature of the business, the type of workplace, the kinds of services offered, and the characteristics of the employees.

Some key generalizations emerge from the arbitral decisions. Testing or restricting the unvaccinated is likely reasonable. Mandating vaccinations may be reasonable under the circumstances; e.g., where risks are high and a vulnerable population requires protection. Lastly, requiring an employee to disclose their vaccination status is also likely to be reasonable. Reasonableness is highly contextual and requires specificity with respect to particular hazards and forms of interference with the business. It is critical to ensure that any COVID-19 policy is adaptable and custom-tailored to the realities of the employees, the workplace, and of the pandemic itself. Where employees violate these policies, penalties may result.

Omicron is an example of how the ever-shifting realities of the pandemic will require constant vigilance from employers to ensure that policies reflect the realities of the day. Keeping employees safe requires a continuous contextual analysis. Ultimately, the key fact in any contextual analysis may be that in Canada, tens of thousands of lives have been lost to COVID-19—and the pandemic is not over.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

[1] RSO 1990, c O.1 [OHSA].

[2] Ibid, s 25(2)(h).

[3] SO 2020, c 26, Sched 1 at s 2(1) [Recovery Act].

[4] Ibid at s 1(2).

[5] Ibid at s 4; Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sched A; with exceptions; see: O Reg 175/98.

[6] There are proposed class actions before the courts; e.g., Nisbet v Ontario, 2021 ONSC 3072.

[7] “COVID-19 advice for the public: Getting vaccinated” (15 November 2021), online: World Health Organization <who.int>.

[8] Ibid.

[9] “Vaccines for COVID-19: How to get vaccinated” (14 January 2022), online: Government of Canada <canada.ca>.

[10] “COVID-19: Effectiveness and benefits of vaccination” (14 December 2021), online: Government of Canada <canada.ca>.

[11] R v Kongolo, 2021 ONSC 6619 at para 41 [Kongolo] citing R v Frampton, 2020 ONSC 5733 at para 6.

[12] “The 12 Common Myths & Misconceptions About COVID-19 Vaccination” (19 May 2021), online: United Nations <un.org>.

[13] Kongolo, supra note 11 at para 40.

[14] Ontario, Ministry of Health, Medical Exemptions to COVID-19 Vaccination, version 3.0 (Toronto: 12 January 2022); RSO 1990, c H.19 [HRC]. Note: where an employee requires accommodation under the Code, an employer is required to provide such accommodation up to the point of undue hardship.

[15] “Toronto Medical Officer of Health strongly recommending Toronto employers institute COVID-19 vaccination policy and support workplace vaccination” (20 August 2021), online: City of Toronto <toronto.ca>.

[16] The Fit Effect v Brant County Board of Health, 2021 ONSC 3651 (CanLII) at para 88.

[17] Electrical Safety Authority v Power Workers’ Union (7 November 2021) arbitrator: John Stout at para 33 [ESA].

[18] Blake v University Health Network, 2021 ONSC 7139 (CanLII) at para 15; Amalgamated Transit Union, Local 113 v Toronto Transit Commission and National Organized Workers Union v Sinai Health System, 2021 ONSC 7658 (CanLII) at para 3.

[19] E.g., the Supreme Court endorsed a line of arbitral decisions which outlined the circumstances under which testing for drugs and alcohol might be permitted; see: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34.

[20] ESA, supra note 17 at para 26.

[21] Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada, 2020 CanLII 100531 (ON LA).

[22] Unilever Canada Inc v United Food and Commercial Workers, Local 175 (24 April 2021) arbitrator: Jules B Bloch [Unilever].

[23] Ellisdon Construction Ltd v Labourers’ International Union of North America, Local 183, 2021 CanLII 50159 (ON LA) [Ellisdon].

[24] Ontario Power Generation v The Power Workers Union (8 November 2021) arbitrator: John C Murray [OPG].

[25] Ibid.

[26] “OHRC Policy statement on COVID-19 vaccine mandates and proof of vaccine certificates” (22 September 2021), online: Ontario Human Rights Commission <ohrc.on.ca>.

[27] Ibid.

[28] Ibid.

[29] ESA, supra note 17.

[30] Power Workers Union v Elexicon Energy Inc, 2022 CanLII 7228 (ON LA) [Elexicon].

[31] Ibid at paras 7, 79.

[32] Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175 (13 December 2021) arbitrator: Robert J Herman [Bunge].

[33] United Food and Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd (9 November 2021) arbitrator: F R von Veh [Paragon].

[34] ESA, supra, note 17 at paras 37-38.

[35] Bunge, supra note 32 at paras 23, 25.

[36] Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (12 January 2022) arbitrator: Norm Jesin [MLSE].

[37] Ibid at para 20.

[38] “Update with consideration of Omicron – Interim COVID-19 infection prevention and control in the health care setting when COVID-19 is suspected or confirmed– December 23, 2021” (24 December 2021), online: Government of Canada <canada.ca> [Omicron, Canada].

[39] Ibid; “Omicron Variant: What You Need to Know” (2 Feb 2022), online: Centres for Disease Control and Prevention <cdc.gov> [CDC].

[40] Sean Davidson, “Ontario needs to ‘reassess the value’ of COVID-19 vaccine passport system, top doctor says” (3 February 2022), online: CTV News <ctvnews.ca>.

[41] Bunge, supra note 32.

[42] ESA, supra note 17.

[43] OPG, supra note 24.

[44] Paragon, supra note 33.

[45] CDC, supra note 39.

[46] Elexicon, supra note 30 at para 6, citing Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467 (CanLII) at para 78.

[47] Garda Security Screening Inc v IAM, District 140 (Shoker Grievance), [2020] OLAA No 162 [Garda].

[48] Ibid at para 15.

[49] Labourers’ International Union of North America, Ontario Provincial District Council and Labourers’ International Union of North America, Local 183 v Aecon Industrial (Aegon Construction Group Inc), 2020 CanLII 91950 (ON LA) [Aecon].

[50] Ibid at para 4.

[51] Ryam Inc Forest Products Group Chapleau Sawmill v United Steelworkers Local 1-2010, 2021 CanLII 61491 (ON LA) [Ryam].

[52] “EI information for employers – COVID-19” (24 December 2021), online: Employment and Social Development Canada <canada.ca>.

Employees who are terminated without cause are entitled to either notice or compensation from their employers. A variety of factors affect how much notice or compensation each individual may receive under their own unique set of circumstances. Some of these circumstances may be “exceptional” and warrant an amount of notice or compensation which goes above the typical maximum; e.g., the COVID-19 pandemic being possibly the most exceptional circumstance of them all.

Notice Period for Termination Without Cause

An employer is entitled to terminate an employee without cause provided that the employee is either given reasonable notice or given payment in lieu of reasonable notice. This is the “Notice Period:” an amount of time, or a level of compensation, to assist a dismissed employee find comparable work. At common law, the Notice Period is “reasonable notice,” which varies with the circumstances of any particular case. (For a history of the development of the common law, see Machtinger v HOJ Industries Ltd).[1] The Notice Period is also a statutory entitlement pursuant to the Employment Standards Act, 2000.[2] The employment contract may specify an entitlement upon termination without cause, so long as entitlement is equal to or greater than the minimum standards in the Act. In other words, one cannot contract out of the Act.

In the event that a court must determine the Notice Period, it must engage in a balancing exercise. In Minott v O’Shanter Development Co, the Ontario Court of Appeal described how “determining the period of reasonable notice is an art, not a science. In each case, trial judges must weigh and balance a catalogue of relevant factors.”[3] These factors were outlined in 1960 by the Ontario High Court in Bardal v Globe & Mail Ltd as follows:

• the character of the employment,
• length of service,
• age, and
• availability of similar employment, having regard to the employee’s experience, training and qualifications.[4]

Note: These Bardal factors are applicable only where an indefinite-term employee is dismissed without cause without an enforceable termination clause. For greater clarity, these factors are not applicable where (i) the employment is for a fixed term, (ii) the employment contract contains an enforceable termination clause, (iii) the employee is dismissed for just cause under the common law, or (iv) the employee has commenced a complaint at the Human Rights Tribunal of Ontario (HRTO) for discriminatory termination.

The Unofficial Ceiling of Twenty Four (24) Months

As a general rule, the unofficial ‘ceiling’ for a Notice Period is twenty-four (24) months. The Court of Appeal held in Lowndes v. Summit Ford Sales Ltd that while “there is no absolute upper limit or ‘cap’ on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months.”[5] It will be up to the employee to establish that their circumstances are exceptional.

Absent exceptional circumstances, the base Notice Period of twenty-four (24) months provides for a realistic maximum. Having certainty in this regard helps both employers and employees come to an agreement about the employee’s entitlement in the event of a without-cause termination.

Ultimately, certainty provides for more confidence as to the outcome of a dispute about the entitlement. This certainty keeps litigation costs down.

‘Exceptional Circumstances’ Lengthening the Notice Period

The notion of ‘exceptional circumstances’ reduces the certainty of the Notice Period, but the factors are not unpredictable. The courts often look at the Bardal factors to determine what circumstances qualify as exceptional.

In 2016, in Keenan v Canac Kitchens Ltd, the Court of Appeal declined to overturn an award of twenty-six (26) months based on the employees’ ages at the time of termination (63 and 61 years old), their length of service (32 and 25 years), and the character of their supervisory and representative positions; i.e., “for over a generation, they were [the employer]’s public face to the outside world.”[6]

In 2021, in Currie v Nylene Canada Inc, the Ontario Superior Court of Justice also granted an award of twenty-six (26) months to an employee who had worked for the same employer for her entire working life, was approaching the end of her career, and that she would face pronounced difficulty transferring her highly specialized manufacturing skills to another employer.[7]

The general case remains to be that the unofficial upper ceiling of twenty-four (24) months is appropriate for most cases, but the court does reserve the right to extend the Notice Period when exceptional circumstances call for an exception to the general rule.

The ‘Exceptional Circumstance’ of COVID-19

On March 11th, 2020, the World Health Organization declared a pandemic due to Coronavirus disease (“COVID-19”): an infectious disease caused by a newly discovered coronavirus. On March 17th, 2020, the Ontario Government declared a state of emergency due to an outbreak of COVID-19. The pandemic is an unprecedented circumstance that the court has considered when calculating Notice Periods.

In the pre-pandemic era, in Michela v St Thomas of Villanova Catholic School, the Ontario Court of Appeal held that “an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case.”[8] In other words, the employee’s entitlement to a Notice Period is not reduced just because times are financially dire for the employer (just as the employee would not be entitled to a larger Notice Period if the employer is enjoying prosperity).

However, the court has recognized COVID-19’s negative effect on the labour market as grounds to lengthen the Notice Period. In Yee v Hudson’s Bay Company, the court noted that it “should take into account the recent COVID pandemic and resulting in significantly increased difficulty in obtaining comparable employment.”[9] For example, in Kraft v Firepower Financial Corp, the court awarded a terminated employee an award of ten (10) months after finding that the normal average award was nine (9) months; i.e., “one month more than the average for his circumstances during non-pandemic times.”[10] Further, in Pavlov v The New Zealand and Australian Lamb Company Limited, the court not only awarded the employee an above-average award but also awarded a bonus on a pro-rata basis with reference to the bonuses paid to other employees during the same time frame.[11]

The court has yet to extend a Notice Period beyond the unofficial twenty-four (24) month ceiling due to COVID-19—but it would not be unfathomable.

Conclusion

Employees terminated without cause are entitled to a reasonable Notice Period which is generally limited to twenty-four (24) months. However, the courts have not imposed this limit as an un-crossable threshold, rather it reserves flexibility for itself to extend the Notice Period for circumstances that are exceptional. The Bardal factors which help to determine the Notice Period are also helpful to determine if any exceptional circumstances are present. With respect to the factor of ‘availability of similar employment,’ the courts have recognized the impact of the COVID-19 pandemic and have, accordingly, extended Notice Periods—but not (yet) beyond twenty-four (24) months.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] 1992 CanLII 102 (SCC).

[2] SO 2000, c 41.

[3] 1999 CanLII 3686 (ON CA).

[4] 1960 CanLII 294 (ON SC) at 145.

[5] 2006 CanLII 14 (ON CA) at para 11, citing Baranowski v Binks Manufacturing Co, 2000 CanLII 22614 (ON SC) at para 277, citing Veer v Dover Corp. (Canada) Ltd, 1997 CanLII 12429 (ON SC).

[6] 2016 ONCA 79 (CanLII) at paras 30-34, cited by Dawe v The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII) at para 32.

[7] 2021 ONSC 1922 (CanLII) at para 84.

[8] 2015 ONCA 801 (CanLII) at para 17.

[9] 2021 ONSC 387 (CanLII) at para 20.

[10] 2021 ONSC 4962 (CanLII) at para 22 [emphasis added].

[11] 2021 ONSC 7362 (CanLII) at para 24.

Background

Working for Workers Act 2021 (the “Act”) introduced by the Ontario government on October 25th, 2021 has now passed and has received royal assent as of December 2, 2021. The Act will attempt to level the playing field for Ontario professionals through several changes. Most notably, it eliminates the use of non-compete agreements in employee contracts. This will be a step towards protecting employees entering into other work opportunities for the benefit and advancement of their careers and improving the support and standards for employees, along with a work policy for employees to disconnect, required by employees with 25 employees or more. This would mean employees would be expected to disengage from work-related communications during “off” hours, and employers could not seek recourse for such disconnection.

Minister Monte McNaughton, Minister of Labour Training and Skills Development, established the Ontario Workforce Recovery Advisory Committee, June 2021, undertaking the revival of Ontario’s economy and how to better its future progress.

Proposal

If passed, this Act would amend Ontario’s Employment Standards Act 2000 (ESA) amongst other statutes in Ontario. This could attract global talent and provide the province with a competitive advantage, especially within industries where Canadian companies lack a leading edge.

Work Disconnect

Employers with 25 or more employees will be required to formally notify employees through written Policy about “disconnecting” from their work-related obligations and post at the end of each workday. The Act addresses the meaning of disengaging from work-related communications such as emails, phone or video calls, sending or reviewing messages as per the employee’s job description. Employees would be free from work performances following the end of each workday. The Policy drafted by employers must include the date it was prepared and any changes made, providing a copy to all employees within 30 days of preparation.

The employer is now required to prepare, produce or amend existing policies to comply with the Act and must comply by March 1, 2022.

Proscribe Non-Compete Agreements

Employers are banned from including non-compete agreements into employee contracts and other contracts which could potentially prohibit employees from engaging in other opportunities, be it work, occupation or business that is in direct competition with the employee’s current business, following the end of that relationship, subject to some exceptions. If any employee were to sign such an agreement, this would be rendered void and violate the Act.

While the effort could assist the Canadian economy, there could be some setbacks for employers looking to protect their intellectual property and current and long-standing clients. In this regard, there is an exception to the Act. The legislation will still allow companies to forbid departing employees from using intellectual property, confidential information. It would still be allowed in the sale of a business or part of a business. As per the agreements of the sale, the purchaser and seller enter into a binding contract which forbids the seller from partaking in any activity, business, work, occupation, profession, project, or other related action that is in direct competition with the engagements of the purchaser acquiring the business after the sale, as well as after the seller becomes an employee of the purchaser. The goal is, to provide job mobility and limit competition barriers.

Further Changes Included are:

Lifted Barriers for Canadian Experience Requirements

Amendments to the Fair Access to Regulation Professions and Compulsory Trades Act, 2006, have removed existing barriers for access to jobs that match skills and qualifications. This would be applicable for Canadian experience requirements and internationally trained individuals. There will, however, still be requirements to ensure there is compliance with the regulation in respect to language proficiency in English or French.

Recruitment and Help Agency Licensing

The Act also adds protection for vulnerable employees with amendments to the Ontario Employment Standards Act 2000 to establish a licensing system for recruiters and temporary help agencies. There will be a list of requirements for such as licensing to operate in the province. The licenses would then be issued by the Director of Ontario Employment Standards yearly.

Availability and Accommodation of Restrooms for Delivery Workers

The Act will require business owners to provide company restrooms for delivery workers if they are delivering or picking up items. This would amend the Occupational Health and Safety Act. Any exceptions would include that providing access would not be reasonable for the health and safety of any person at the workplace; if providing access would not be reasonable or practical regarding all circumstances, with several regards to specific circumstances relating to the current employees of the workplace and location of the washroom in the workplace.

COVID-19 Recovery and WSIB

The Act further allows surpluses in the Workplace Safety and Insurance Board’s (WSIB) Insurance Fund to be distributed to certain levels to business as an initiative to assist employers with the impacts of COVID-19. It provides that the WSIB’s current reserve may be distributed to Schedule 1 employers as defined in WSIA if the amount of the insurance fund meets a sufficiency ratio.

Future Impact

The wording of the legislation with respect to non-compete clauses is important as many employers have and rely upon non-compete clauses in their current contracts. As we know from Waksdale v. Swegon North America Inc., 2020 ONCA 391, if an employment contract contains a clause that violates the Employment Standards Act, the entire contract is void, even if the employer has no intention of enforcing the offending clause. An employer’s action or inaction will not be enough to save an otherwise invalid contract. The Act does not state that the prohibition of non-compete clauses will apply retroactively. Nevertheless, Employers should be vigilant of the changes in the Employment Standards Act to reduce the risk of unwelcome surprises upon the termination of an employee.

If you have any questions regarding the Working for Workers Act, 2021 and how these proposed changes could impact your workplace, please contact Timothy Gindi at 416 446-3340 or Timothy.Gindi@devrylaw.ca. Additionally, you can contact Marty Rabinovitch at 416 446-5826 or Marty.Rabinovitch@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Angela Victoria Papeo*

For what is not the first time and will not be the last time in Ontario employment law, two different judges of the Ontario Superior Court of Justice have issued conflicting decisions – this time with respect to whether reducing or eliminating an employee’s wages and/or hours during the COVID-19 pandemic, in response to the pandemic, amounts to a constructive dismissal under the common law.

In Ontario, termination entitlements are determined via two sources: legislation or the “common law” (if an employee’s entitlements have not validly been limited to statutory minimums). The common law is not based on written guidelines but instead on prior decisions. On May 29, 2020, the Ontario government enacted O. Reg. 228/20 Infectious Disease Emergency Leave(the “IDEL Regulation”), a regulation that retroactively established an Infectious Disease Emergency Leave (“IDEL”) during the “COVID-19 period” (i.e. from March 1, 2020, and most recently extended to September 25, 2021). Ontario’s minimum standards legislation, the Employment Standards Act, 2000, S.O. 2000, c. 41, was amended to preclude a claim for a statutory constructive dismissal during an IDEL. Therefore, while it was clear that an employee could not pursue a constructive dismissal claim under the ESA for COVID-related reductions in wages and/or hours, it was unclear whether they could still pursue one under the common law.

On April 27, 2021, Justice D.A. Broad of the Ontario Superior Court rendered Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 [Coutinho], a summary judgment decision favourable to employees. After reviewing the relevant IDEL Regulation and ESA provisions, Justice Broad found that the IDEL regulation would apply if the following five conditions were satisfied:

1. The employee is not represented by a trade union;
2. The employee is subject to a temporary reduction or elimination in hours of work and/or wages;
3. It must be the employer that temporarily reduces or eliminates the employees’ hours of work and/or wages;
4. The temporary reduction or elimination of the employees’ hours of work and/or wages must have occurred for reasons related to COVID-19; and
5. The above four conditions must occur during the defined COVID-19 period.

In our opinion, based on the wording of the statute, the above five conditions to trigger an IDEL will likely be upheld.

Justice Broad in Coutinho held that absent an agreement to the contrary, a unilateral layoff by an employer amounts to a constructive dismissal. He relied on:

• Section 8(1) of the ESA, which says that “subject to section 97 [when employees cannot commence civil proceedings for the same matter], no civil remedy of an employee against his or her employer is affected by this Act”;
• An online publication of the Ontario Ministry of Labour, Training and Skills Development which explicitly noted that the IDEL Regulation affects “only what constitutes a constructive dismissal under the ESA”; and
• The pre-COVID-19 decision Elsegood v. Cambridge Spring Service 2002 Ltd., 2011 ONCA O.J. No. 6095, which held that absent an agreement to the contrary, an indefinite leave can amount to a termination under the common law.

In Coutinho, despitefully mitigating (i.e. eliminating) her common law damages, the employee was entitled to her statutory minimums for termination.

In contrast, on June 7, 2021, Justice J.E. Ferguson of the Ontario Superior Court of Justice rendered Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”) which explicitly and firmly rejected Coutinho and held that an employee could not pursue a common law claim for constructive dismissal if the employee had properly been placed on an IDEL at any time during the COVID-19 period (as the amendments applied retroactively).

Justice Ferguson relied on the following:

1. He was of the view that the IDEL Regulation was enacted to ameliorate the impact of the government’s own legislation causing businesses to temporarily close or cut back their operations due to an unprecedented modern pandemic;
2. Elsegood held that statutes can displace the common law and the common law does not operate independently of the ESA;
3. If the common law was independent, he believed that the common law should evolve due to the unprecedented regulations and impact on businesses; and
4. He dismissed s.8(1) of the ESA as merely confirming that the ESA was not the exclusive forum to seek redress for ESA violations.

Notably, Justice Ferguson did not address the Ministry’s online publication. Accordingly, all temporary layoffs relating to COVID-19 (retroactive to March 1, 2020) were deemed to be a statutory leave (IDEL) and therefore subject to leave related rights (e.g. reinstatement rights, benefits continuance). If the conditions for an IDEL leave were met, a common-law termination did not occur.

While employers and management personnel will no doubt be happy with the Taylor decision, we would advise organizations to proceed with caution until the Ontario Court of Appeal provides some much-needed clarity and guidance. It does not appear that either decision has been appealed yet. 

The Superior Court of Justice has now rendered directly conflicting decisions. Our employment law team at Devry Smith Frank LLP will continue to monitor the situation closely. If you or your organization have any questions about the IDEL, or any other labour or employment law issue, we would be happy to assist you.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

If your employment is terminated, you are entitled to temporarily keep your group or employee benefits, such as medical or drug insurance plans. However, there are a number of important considerations to keep in mind.

How long can I keep my benefits?

The amount of time you will generally be allowed to keep your benefits is a range that depends on how long you were employed. It can be a simple calculation: if you worked for less than one year, you will be able to keep your benefits for one week. If you worked for eight years or more, your benefits will last for eight weeks. It is your employer’s responsibility to continue making payments on your behalf to ensure that you keep your benefits during this time period. This time period is called the “statutory notice period.”

If you become sick or disabled during the statutory notice period (e.g., if you become ill with COVID-19), you remain entitled to your medical benefits. If your illness or disability extends beyond the period, your claim for benefits could possibly extend for as long as the medical issue persists. However, it will be very important for you to be able to prove when the medical issue started.

If your medical issue arises beyond the statutory notice period, you may still be entitled to medical benefits under the “common law notice period.” However, unlike the statutory notice period, there is no simple calculator available to determine how long this period lasts. The Ontario High Court of Justice held that “there can be no catalogue laid down as to what is reasonable notice” (Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC)). The Ontario Court of Appeal declared that calculating this period “is an art, not a science” (Minott v. O’Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA)).

For this reason, it is very important for you to get legal advice to understand your legal rights before accepting a settlement offer. At a minimum, you may wish you consider having a complete medical examination.

“What if I was terminated because I have COVID-19? Or, what if I was terminated because of any other medical condition?”

If the decision to terminate you was influenced by a medical issue—or even a perceived medical issue—your human rights may have been violated and you are entitled to make a human rights complaint.

However, human rights complaint processes and awards are complex. It will be very important for you to get legal advice to understand your legal rights.

Seek Legal Advice

For more information, assistance, or any other questions, please contact our employment lawyers today. Do not delay.

This blog was co-authored by David Heppenstall, Student-at-Law.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”