Charter does not protect individuals from economic consequences of their workplace decisions

by Sheryl Johnson

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On Mar. 22, 2022, an Ontario arbitrator upheld the Toronto District School Board’s mandatory vaccination policy, maintaining it did not infringe section 7 of the Canadian Charter of Rights and Freedoms. Photo credit: The Canadian Press/Frank Gunn

 

The Toronto District School Board (TDSB) and CUPE, Local 4400 case is the first arbitration award in Ontario addressing whether a mandatory vaccination policy infringes section 7 of the Charter. The decision upholds the TDSB’s mandatory COVID-19 vaccination policy determining that the policy:

– did not infringe section 7 that provides that everyone has the right to life, liberty and security, and not to be deprived of the same except in accordance with the principles of fundamental justice; and

– was a reasonable exercise of management rights.

The Policy:

TDSB’s policy required all employees with direct contact with staff or students at a TDSB workplace to:

  • Be fully vaccinated against COVID-19 (i.e., two doses of an approved vaccine – it was not amended to require a booster); and 
  • Provide evidence of this by Nov. 1, 2021, or establish that they had a valid medical or Human Rights Code (HRC) exemption. 

Employees who did not do so would be placed on non-disciplinary leaves of absence without pay. 

The Policy’s Implementation:

Given staffing requirements, the TDSB used a decision matrix to decide whether an unvaccinated employee would be allowed to attend work with testing. Application of this matrix resulted in 300 temporary exemptions and a smaller number of unvaccinated employees being permitted to remain at work with testing, pending determination of their creed and medical exemption requests. 

On Mar. 10, 2022, in the evening after the final day of the arbitration hearing, the TDSB rescinded the policy once the Ministry of Education advised school boards that they were no longer required to have the vaccination status disclosure in place.

The Disputes:  

1) Whether mandatory vaccination infringes section 7 of the Charter (which only applies to public employers not private employers). 

2) Whether the policy was reasonable, including its vaccine attestation requirement (for which there were no complaints), the requirement that employees be vaccinated to attend work, and placing non-compliant/unvaccinated employees on non-disciplinary leave without pay.

The Decision

On the first issue the Arbitrator found that the policy did not violate anyone’s life, liberty or security of person and, accordingly, there had been no section 7 Charter breach as the policy did not require mandatory vaccination, mandate a medical procedure, or seek to impose one without consent. In concluding, the Arbitrator noted: “Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision.”  Furthermore, the Arbitrator assessed that the policy was not arbitrary, overbroad, or disproportionate to its objective of preventing the transmission of COVID to employees and students in TDSB schools.

On the second issue, the Arbitrator held that while the policy was in force it was a reasonable exercise of management rights and met the test of being consistent with the collective agreement, reasonable, clear and unequivocal, consistently enforced after being brought to the attention of the employees, including in relation to informing them that a breach of the policy by them could result in the termination of their employment, before it acted on it. 

In coming to this conclusion, the Arbitrator noted that the starting point in this analysis is the OHSA. The OHSA requires employers to take every precaution reasonable in the circumstances for the protection of their workers. The Arbitrator noted that the assessment of what is reasonable for a precaution must be based on expert evidence. In the context of this case, the Arbitrator relied on the fact that a significant percentage of the population of schools are extremely vulnerable because of their ineligibility for vaccination and as such the TDSB appropriately complied with the OHSA because “expert evidence is that vaccination was the number one and best method of reducing the contraction and spread of COVID-19.”  

The Take-Away for Employers:

The main source of decisions regarding mandatory vaccination policies remains arbitration decisions. In each case, arbitrators consider the individual policy in the particular workplace environment in which it is applied.  

The same goes for employers, whether non-unionized or unionized, in deciding whether to maintain, amend, or rescind their mandatory vaccination policies in our current context – particularly now that COVID-19 numbers are on the rise once again.  

Employers must assess their individual context and determine in their workplace environment, looking at their population, and their particular potential health and safety risks, what is appropriate (and not arbitrary), proportionate (and not overbroad), and reasonable (based on expert evidence) to meet their obligations under the OHSA.  

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