To wrap up 2022 and prepare for 2023, we highlighted key developments in Canadian labour and employment law:

1. COVID-19 Update

Workplace Vaccination Policies

Mandatory vaccination policies remained a prevalent issue in 2022. The first decisions to provide guidance on this topic came out of unionized workplaces, with many upholding vaccination policies.

In Toronto District School Board v CUPE, Local 4400, Arbitrator Kaplanupheld the employer’s vaccination policy which stated that unvaccinated employees would be placed on unpaid leaves of absence. Arbitrator Kaplan found that the policy was a reasonable exercise of management rights and that it did not violate the individual’s right to life, liberty or security of the person under s. 7 of the Charter of Rights and Freedom. Similarly, in Power Workers’ Union v Elexicon Energy Inc., Arbitrator Mitchell found an employer’s policy which required employees to be vaccinated with three doses to be reasonable in the circumstances.

While most labour arbitration decisions to date have favored employers, some have not. In FCA Canada Inc. v Unifor, Locals 195, 444, 1285, Arbitrator Nairn held that a policy which required two doses of the vaccine was no longer reasonable in light of evolving scientific evidence. She cautioned that the reasonableness of mandatory vaccination policies would be assessed on a case-by-case basis by looking at a workplace’s particular circumstances in the context of the changing nature of the pandemic.

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