Executive Summary: Key Legal and Evidentiary Issues

• Humber River Health sought judicial review of an arbitration decision that reinstated two employees terminated for non-compliance with its COVID-19 vaccination policy.

• The arbitrator found that disciplining employees for refusing vaccination violated their right to medical consent, regardless of policy reasonableness.

• The Divisional Court held that while this general principle was unreasonably applied, the arbitrator’s specific ruling on termination after a short unpaid leave was still reasonable.

• Key arbitral and judicial precedents supporting discipline for vaccine policy breaches during the pandemic were overlooked or improperly rejected.

• The court emphasized that reasonableness review requires balancing employee rights with employer health and safety obligations under KVP and Irving.

• Although the arbitrator’s broader reasoning was flawed, the application was dismissed because the reinstatement decision remained within the range of acceptable outcomes.

Background of the dispute
Humber River Health is a major acute care hospital in Toronto. In response to the COVID-19 pandemic and in compliance with Ontario's Directive #6, Humber implemented and later amended a mandatory vaccination policy for all employees, contractors, and volunteers. Initially, employees had the option to either be vaccinated, obtain a medical exemption, or attend an educational session with regular testing. In December 2021, amid rising infections and new variants, the hospital removed the educational/testing option and mandated full vaccination unless medically exempt.

Grievances and terminations
Stacy Hughes and Marisol Sanchez, two employees represented by Teamsters Local Union No. 419, refused to comply with the amended policy. Both were placed on two-week unpaid leaves in January 2022 and warned that non-compliance would result in termination. When neither provided proof of vaccination by the deadline, they were terminated for cause on February 3, 2022. The union filed grievances challenging the dismissals.

Arbitration decision
In a decision dated March 11, 2024, Arbitrator Jasbir Parmar found that Humber’s vaccination policy was reasonable but ruled that disciplining employees for refusing vaccination constituted a breach of their medical consent rights. She applied general arbitral principles from non-pandemic contexts, holding that an employee cannot be disciplined for refusing to undergo a medical procedure or disclose medical information. The arbitrator concluded that neither disciplinary nor non-culpable grounds justified the terminations, as the grievors could have remained on unpaid leave with minimal impact to the hospital.

Judicial review application
Humber sought judicial review of both the merits and remedy decisions, arguing that the arbitrator had unreasonably disregarded the legal and factual context of the pandemic. The hospital cited widespread arbitral precedent—particularly the Central West and Lakeridge decisions—where terminations for vaccine policy non-compliance were upheld, especially in healthcare settings. Humber further relied on judicial authority confirming that mandatory vaccination policies during COVID-19 did not violate bodily autonomy or informed consent rights.

Divisional Court analysis
The Ontario Divisional Court agreed that the arbitrator’s sweeping statement—that employees can never be disciplined for refusing vaccination—was unreasonable. The court held that such a blanket rule failed to engage in the required balancing of employer safety obligations and employee autonomy, particularly in the extraordinary context of a public health crisis. Nonetheless, the court found that the specific outcome—reinstating the employees after only two weeks on unpaid leave—was reasonable. The arbitrator's finding that it was premature to terminate the grievors after such a short interval was supported by similar reasoning in other cases.

Remedy and practical considerations
The arbitrator had already reinstated the employees without back pay, recognizing their initial unwillingness to return to work. She also set a clear timeline for them to indicate intent to resume employment. Given this practical resolution and the narrow factual basis of the reinstatement, the court found no value in ordering a new arbitration. It declined to interfere further, despite disagreeing with the arbitrator’s broader legal reasoning.

Final outcome
The application for judicial review was dismissed. While the arbitrator’s general legal principle was found to be flawed, the reinstatement of the employees was upheld. The decision reinforces the need for arbitrators to contextualize rights like medical consent within the realities of workplace safety and public health but also respects outcomes grounded in specific factual circumstances. Costs of $10,000 were awarded to Humber in accordance with the parties’ agreement.