The Divisional Court of Ontario has overturned a 2024 arbitration award that decided discipline was never an appropriate response for breach of a hospital's mandatory vaccination policy in a pandemic.1 The court decided that arbitration award was unreasonable.
What Did the Arbitrator Decide?
The core issue at arbitration was whether the hospital had just cause to terminate two employees for failing to comply with a mandatory COVID-19 vaccination policy designed to protect health and safety during the pandemic.2
The arbitrator found that the hospital's mandatory vaccination policy was reasonable and its enforcement was a legitimate exercise of management rights. However, departing from arbitral consensus on the issue, the arbitrator applied a general principle about medical consent rights decided in another context and concluded that an employer can never discipline an employee for refusing to exercise their consent to medical treatment and/or disclosure of medical information.
Specifically, the arbitrator ruled that an employee's refusal to provide proof of vaccination could not justify disciplinary action because it engaged their medical consent rights. The arbitrator also concluded that the terminations could not be justified on disciplinary or non-disciplinary grounds in the circumstances.
The hospital brought an application for judicial review.
What Did the Divisional Court Decide?
The Divisional Court found that, without a compelling reason, the arbitrator had departed from the established line of caselaw regarding mandatory vaccination policies in the context of the COVID-19 pandemic. Specifically, the arbitrator had departed from the arbitral consensus that non-compliance with a reasonable policy was a basis for discipline.
Among things, the Divisional Court took issue with the decision on the following:
- By elevating medical rights above the importance of the subject matter of the policy and its purpose, the arbitrator's decision failed to address the unique context of the COVID-19 pandemic;
- By finding that non-compliance with a mandatory vaccination policy can never be met with discipline, the arbitrator had unreasonably disregarded the nature of the hospital's workplace which necessitated the policy and failed to engage in balancing its duty to protect patients, staff and visitors; and
- By applying the general principle regarding medical consent rights reached in a different context, the arbitrator failed to consider that the hospital was under a legal obligation to ensure compliance with its vaccination policy.
The Divisional Court ultimately concluded that it was unreasonable and unnecessary to decide that an employee could never be disciplined for failing to comply with a mandatory vaccination policy during a pandemic.
Takeaways
This decision is a welcome one for healthcare employers and reestablishes clarity in the arbitral caselaw surrounding mandatory vaccination policies. A reasonable vaccination policy may be enforced, including through discipline.
The Divisional Court observed that arbitrators in previous awards concerning mandatory vaccination policies in the context of COVID-19 had engaged in a balancing of interests between the risks posed by COVID-19 and employee's privacy rights. The Divisional Court did not comment in detail on what that balance may be generally, however the decision makes clear that in the exigent circumstances of the COVID-19 pandemic an arbitrator is required to reconcile those competing interests and the failure to do so may lead to an unreasonable decision. More broadly, the decision reiterates that for an arbitrator to depart from arbitral consensus on a point of law, they must provide a compelling reason to do so.
Footnotes
1 Humber River Health v. Teamsters Local Union No. 419, 2025 ONSC 2270
2 Humber River Hospital v Teamsters Local Union No. 419, 2024 CanLII 19827
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
