COVID-19 Update: Pandemic Case Law Continues to Develop

Case law pertaining to pandemic related policies and practices continues to wind its way through the courts, arbitration and hearing before the Ontario Labour Relations Board (OLRB).  In this Covid-19 Legal Update, we review some recent decisions of note for employers related to challenges to mandatory vaccination policies and pandemic pay.

Vaccination Policy Challenges and the Unions Duty of Fair Representation

Since late November 2021, a number of legal challenges to mandatory vaccination policies have been heard by arbitrators and in the courts.  We’ve previously written about these cases here and here.  More recently a series of Duty of Fair Representation (DFR) cases have been brought by employees against their unions, claiming that by failing to grieve mandatory vaccination policies, or do so in a timely manner, constitutes a breach of the union’s duty of fair representation.

In Ryan Sloan v Ontario Secondary Teachers’ Federation, 2021 CanLII 131991 (ON LR), the Ontario Labour Relations Board dismissed a DFR for failure to disclose a prima facie case. In that case, the applicant was a secondary school teacher taking issue with COVID-19 vaccination, and with the union’s response to the School Board’s vaccination policy. In the DFR application, the teacher argued that the union breached its duty in not filing a grievance about the school board’s vaccination policy prior to union members being placed on unpaid leave of absence for non-compliance with the policy.

In the context of a DFR complaint, the Board looks only to whether a union’s conduct was arbitrary, discriminatory or in bad faith in the representation of members. This is a limited inquiry, which does not dictate any particular course of action by a union or outcome for a member. That a union might act (or choose not to act) in any particular manner concerning an employer’s vaccination policy is not the question; given that a union need only act in a manner that is not arbitrary, discriminatory or in bad faith, it is expected that there will be a range of reasonable outcomes, including a decision not to advance a grievance.

In this case, the application largely consisted of bald allegations, accusing the Federation of being, for example, “perfunctory, reckless and indifferent to employee’s interests.” Bald allegations, unsupported by material facts, do not make out a prima facie case of a breach of the duty of fair representation. Moreover, the teachers allegations were not consistent with the documents that the teacher had himself filed. Indeed, the documents showed that the union responded to his various inquiries at length and in detail (albeit not necessarily giving him the answer he wanted).

The Labour Board held that there was nothing else in the application about the Federation’s conduct upon which a breach of the Labour Relations Act could be found, so the matter was dismissed.

Vaccination Policies and Interim Relief

In District of West Vancouver and West Vancouver Professional Fire Fighters Union, Local 1525, Re, 2021 BCLRB 198, the union filed an application for an temporary relief alleging that the District of West Vancouver (the “Employer”) breached the Labour Relations Code by failing to “provide the required notice and meet in good faith with the Union to develop an adjustment plan when it recently imposed a mandatory COVID-19 vaccination policy” (“the Policy”). The Policy in question was to take effect on January 4, 2022 and would have held unvaccinated employees out of work.

In its application for interim relief, the union alleged that the Employer failed to give it 60 days’ notice and failed meet in good faith to attempt to develop an adjustment plan before the effective date of the Policy.  As the Policy was to become effective on January 4, 2022, the board’s decision only dealt with the Union’s request for an interim order to postpone the Policy’s implementation until the Union’s application challenging the policy could be decided on the merits.

Following a growing line of jurisprudence in similar cases, the Board chose not to award the interim remedy to the Union for several reasons, including the fact that the employees would not be without adequate remedy if the policy were to be implemented before a hearing on the merits.

It’s important to note that this case (and its predecessors) should not be interpreted as support for mandatory vaccination policies.  The matter of the reasonableness of the policy remains to be decided on its merits in the months ahead.

Pandemic Pay

In Rexall/Pharma Plus Pharmacies Ltd and UFCW Local 175 (R4-20-0205), 2021 CarswellOnt 19398, the union filed a Policy Grievance on behalf of all locations within Ontario represented by the Union, alleging a violation of the Collective Agreement when the Employer, Rexall/Pharma Plus, eliminated a $2.00 “pandemic premium”, while the province continued to be in a declared pandemic. This decision deals with the Employer’s preliminary motion seeking to have the Union’s grievance dismissed on the basis that there is no case on the merits.

The key factor in this motion is the absence of any facts which could demonstrate that the parties’ agreed to a continuing pandemic pay premium, as asserted by the employer’s counsel. All that was contained in the particulars by the union is a claim that the parties “agreed to a pandemic premium.” Consequently, in the absence of any “facts” about the parties’ “agreement”, the Employer’s motion to dismiss on the basis of a no prima facie case succeeded and the grievance was dismissed.

This lends support to the many employers who have unilaterally implemented temporary supportive measures for their employees during the pandemic, and their right to discontinue such measures absent a evidence of an agreement with employees or a union for their continuance.

PooranLaw will continue to monitor the ongoing legal developments related to COVID-19. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.