On January 12, 2022, Arbitrator Randall Noonan issued a decision denying an application by the International Association of Professional Firefighters to stay the implementation of a mandatory vaccination policy (the “Policy”) by the City of Richmond (the “Employer”). In this case, the Employer had enacted its vaccination policy with a view to limiting the spread of Covid-19 among its workforce and members of the public with whom the workforce interacted. The three unions making the application claimed that the Policy was overreaching and that either the status quo or a less intrusive vaccination policy would suffice to meet the Employer’s goal.
The application before Arbitrator Noonan was for interim relief and did not involve an analysis of the merits of the unions’ grievances.
The Arbitrator understood that some union members who choose not to comply with the Policy may suffer significant consequences to their personal lives. However, he did not have enough evidence before him to show that there was an equivalent or acceptable alternative to the Policy that would meet the goals of preventing the spread of the virus while eliminating those personal consequences. The Arbitrator held that if he were to grant the order sought by the unions, and subsequently employees or others were exposed to the virus and became seriously ill or died, there would be no amount of a monetary award that could remedy that.
In finding that the balance of convenience test applies, the Arbitrator concluded that balance lies in favour of the Employer. In these circumstances, granting the application for staying, limiting or altering the Policy would not be just and equitable in all the circumstances of the case. The unions’ applications were denied.
Three unions, IAFF, Local 1286; CUPE Local 718 and CUPE Local 394, applied for an interim order staying the application of the Employer’s Policy, which required all employees to provide proof of vaccination or be placed on unpaid leave effective December 20, 2021. If granted, the Policy would not be implemented until after the merits of the grievances are determined, pending the outcome of the arbitration procedure scheduled for Spring 2022. As an alternative, the unions asked for an order exempting certain groups of employees from the requirements of the Policy.
The Arbitrator outlined the three-pronged test courts use in determining whether to grant injunctive relief: there must be a serious issue to be tried; there must be a determination as to whether the applicant would suffer irreparable harm if the injunction is not granted; and an assessment must be made as to which party would suffer greater harm from granting or refusing to grant the injunction. Arbitrators in British Columbia generally consider, in deciding applications for interim orders, the balance of convenience and interests of the parties.
The Arbitrator considered federal and Ontario case law that dealt with interim relief related to Covid-19 mandatory vaccination policies. In the Arbitrator’s view, his decision needed to be based on an assessment of whether the granting of the interim order would be “just and equitable in all the circumstances of the case.”
In the Arbitrator’s view, the unions’ arguments failed to give proper weight to the preventative element of the Policy. The unions invited the Arbitrator to consider that the protocols to date had been successful. While the Arbitrator certainly accepted and expected that the types of protocols in place prior to enactment of the Policy have ameliorated what likely would have been a much worse situation, that did not in itself indicate that he could find on an interim basis that a Policy aimed at lowering the infection rate was improper.
The Arbitrator found that the health and safety risks to employees and to members of the public with whom they interacted outweighed the intrusion into privacy and bodily integrity rights of those members of the unions who choose not to comply with the Policy between now and when the matter is determined.
The Arbitrator acknowledged that what may happen in the interim is inevitably speculative in nature, but held that if employees of the Employer, or members of the public with whom they interact, become infected through contact with an unvaccinated and infected employee, the damage done to such people may truly be irreparable. Some people suffer considerable and serious long-term health consequences from contracting Covid-19, including death, and there is no legal remedy that could address that.
The Arbitrator further considered that compliance with the Policy does not guarantee that there will be no infections that follow. However, he accepted that the Policy is intended to reduce the risk of spread of the virus. Arbitrator Noonan could not conclude that such a preventative policy should be stayed for any period of time until the grievances are determined.
Therefore, the applications of the unions to order the stay of the implementation of the Policy pending the outcome of the arbitration process was denied.
The Arbitrator also rejected the union’s interim measure that the Policy should not be applied to certain groups of employees who have more limited contact with other employees or members of the public.