GSB# 2021-2043
Union# G-101-21-COR
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587 (Parada)
Union
- and -
The Crown in Right of Ontario (Metrolinx)
Employer
BEFORE
Matthew Wilson
Chair
FOR THE UNION
Dean Ardron, Counsel Adriana Zichy, Counsel Nicole Paroyan, Counsel Ursel Phillips Fellows Hopkinson LLP Rob Cormier, ATU, Local 1587
FOR THE EMPLOYER
Andrew Zabrovsky, Counsel Mornelle Lee, Counsel Alessandro Lamanna, Summer Student Hicks Morley Hamilton Stewart Storie LLP Mark Gallina, Metrolinx, Manager, Employee & Labour Relations Jenny Ho, Metrolinx, Director, Occupational Health and Safety
HEARING
June 4, 2025
Decision
Background
This grievance, filed by Amalgamated Transit Union, Local 1587 (“ATU”) alleges that the Crown in the Right of Ontario (Metrolinx) (“Metrolinx”) breached the collective agreement and the Human Rights Code when it placed Francisco Parada (“the grievor”) on an unpaid leave of absence for not complying with its Vaccination Policy (“the policy”).
This matter proceeded efficiently because of the work of counsel in advance of the hearing date. I was presented with written opening statements, a will-say statement of the grievor, and relevant documents and authorities. The grievor adopted his will-say statement and was subjected to a brief cross-examination.
For this proceeding, the parties agreed to presume that the policy was reasonable. The ATU has reserved its right to challenge the reasonableness of the policy at a later stage should it choose to do so.
The Vaccination Policy
Metrolinx introduced a vaccination policy that applied to all employees, contractors and visitors other than construction contractors at construction sites where Metrolinx was not the constructor. The policy stipulates that Metrolinx received a letter of instruction from the Ministry of Transportation requiring it to introduce a mandatory Covid-19 vaccination policy.
The aspect of the policy relevant to this case is that all employees were required to be vaccinated against Covid-19 before November 1, 2021. By September 21, 2021, employees had to disclose either their vaccine status, their intent to get vaccinated, or their intent to seek an exemption.
The policy stipulated that employees who failed to disclose their status or intentions were required to attend a mandatory educational session on the benefits of the vaccine against Covid-19. Under the policy, if an employee remained unvaccinated, without an approved exemption, by November 1, 2021, the employee was placed on an unpaid leave of absence. The policy also stated that employees may be subject to discipline, including termination of employment, if they remained unvaccinated.
Employees had the option of applying for an exemption on any of the protected grounds under the Human Rights Code. The policy stated as follows:
Exemption requests with appropriate documentation must be submitted through the COVID-19 Vaccination Exemption Request Form and will be addressed on a case-by-case basis. Personal preference is not a protected Ontario Human Rights Code ground and will not warrant an exemption.
The Grievor
The grievor has worked for Metrolinx as a Coach Technician since 2014. His job duties, which he has performed at different locations, include diagnosing and repairing coach buses and performing preventative maintenance work. His statement that he worked alone and could maintain more than six feet of distance from his coworkers was not challenged by Metrolinx.
The grievor and his spouse care for their baby at home. The grievor is the primary income earner for the household.
The grievor acknowledged that he learned of the policy through an email from Metrolinx. He testified that he reviewed the policy and understood that he was expected to be vaccinated by November 1, 2021. He also understood that he could seek an exemption from the application of the policy.
The grievor is a Christian and believes that taking the Covid-19 vaccine is contrary to his religious beliefs. His evidence, as set out in his will-say statement, is as follows:
I believe that one day Christians will be forced to make a decision about whether they will get the Mark of the Beast. I do not think that the vaccine is itself the Mark [of] the Beast, but that vaccination requirements were a test trial for the future. I believe that people were being tested by taking away their livelihood, to see what they would do. Similarly, if people do not receive the Mark of the Beast in the future, they will not be able to buy food, and their commitment to Christ will be tested.
While counsel for Metrolinx cross-examined the grievor on his beliefs, it is not necessary to review this in detail. The grievor did not waver from his beliefs during the hearing.
The grievor did not submit an exemption request to Metrolinx under the policy nor did he make it known to Metrolinx that he objected to the vaccine based on his religious beliefs. He explained that he did not think that his employer should know what his religious beliefs were at the time. His will-say statement states, “…as it is my body … I should have a say about whether or not I receive the vaccine”.
During cross-examination, he confirmed that he chose not to seek an exemption because he felt that he should not have to explain his religious beliefs. The grievor testified that there was no need for Metrolinx to know his beliefs. By submitting an exemption, the grievor believed that he would be explaining his beliefs. He felt this was unnecessary.
Analysis
The ATU challenges Metrolinx’s decision to place the grievor on an unpaid leave of absence and bar his return to work until September 2022, when the vaccine policy was lifted. The ATU argues that the grievor provided a reasonable explanation for not seeking a religious exemption. It argues that the grievor was entitled to be “quietly religious”. According to the ATU, once the grievance was filed by the ATU, it should have triggered a conversation. If Metrolinx had made inquiries about the grievor’s reasons for refusing the vaccine, it would have been apparent that he was seeking a religious exemption.
Metrolinx responds that the grievor’s failure to seek an exemption is a sufficient reason to dismiss the grievance. It argues that the policy provides a clear process to seek an exemption and the grievor refused to provide the information needed to assess his circumstances. Metrolinx also denies that the grievor was entitled to the exemption even if he had made the request.
I have carefully considered the parties’ submissions and the jurisprudence presented to me in favour of their positions. In my view, this case turns on the grievor’s refusal to seek an exemption from the vaccine policy.
It is not disputed that Metrolinx has a duty to accommodate the religious beliefs of its employees. That duty continues to the point that it causes undue hardship for Metrolinx. The jurisprudence provided to me by the parties describes this legal obligation in greater detail. However, before the duty is imposed on Metrolinx, it must be made aware or reasonably ought to have been aware that the employee requires the accommodation.
The grievor understood the vaccine policy and was aware of the process to seek an exemption. He was capable of seeking an exemption and knew the consequences of being unvaccinated without an exemption to the policy. The policy is clear that one of the consequences for failing to comply with the policy without an exemption is being placed on an unpaid leave of absence. The policy states:
Any Employee who fails to disclose their proof of vaccination and/or fails to be Vaccinated against COVID-19 before November 1, 2021, without an approved exemption, will be in violation of this Policy and will be placed on unpaid leave effective November 1, 2021.
The grievor’s only explanation for refusing to seek an exemption is that he did not think he should have to share his religious beliefs as a reason for not being vaccinated. He reached this conclusion with the knowledge that the policy stipulated that he would be placed on an unpaid leave of absence.
Arbitrators have held that the requirement to disclose vaccination status is justified in the context of the pandemic (Seneca College v. OPSEU, Local 561, 2024 CanLII 120570 (Randazzo); Bunge Hamilton Canada, Hamilton, Ontario v. United Food and Commercial Workers Canada, Local 175, 2022 CanLII 43 (Herman). The ATU does not challenge the reasonableness of Metrolinx’s vaccination policy. It is only logical that if an employee seeks an exemption to a reasonable vaccination requirement, they need to share the reason with the employer.
The ATU is correct that Metrolinx must satisfy its duty to accommodate by, as a starting point, considering requests for religious exemptions. However, it is also necessary for such a request to be made for it to be considered. There is no evidence that Metrolinx was aware or ought to have been aware that the grievor’s objection to the vaccine policy was based on a protected ground of the Human Rights Code. It could not have anticipated the grievor’s need for a religious exemption.
I do not accept that the filing of the grievance should have triggered a dialogue between Metrolinx and the ATU about the grievor’s need for accommodation. The grievance filed by the ATU does not disclose the reason for the grievor’s refusal to be vaccinated. It does not state that he was seeking a religious exemption or that he had an explanation based on his religious beliefs. Again, the grievor testified that he did not want to share these details with Metrolinx and he maintained that position throughout the arbitration hearing.
It is not necessary to deal with Metrolinx’s objection to the legitimacy of the grievor’s beliefs. This grievance fails because the grievor did not make his religious objection known to Metrolinx and there is no way Metrolinx could have known that the grievor’s objection was based on such beliefs.
For these reasons, the grievance is dismissed.
Dated at Toronto, Ontario this 7th day of August 2025.