Court File and Parties
Court File No.: CV-21-00670531-0000 Date: 2021-10-22 Superior Court of Justice – Ontario
Re: Renita Blake, Erena Buzhaker, Anna Kektsidis-Piszko, Olga Kudritska, Lee Keng Koh, and Gifitii Kebede, Plaintiffs
And:
University Health Network, Lakeside Long-Term Care Centre, Michener Institute of Education, Princess Margaret Cancer Centre, Toronto General Hospital, Toronto Rehabilitation Institute, Toronto Western Hospital, Defendants
Before: S.F. Dunphy J.
Counsel: Ian J. Perry (ian@perrysllp.com), for the Plaintiffs Maureen Quinlan (Maureen-Quinlan@hicksmorley.com), Mark Toppings (Marc.Toppings@uhn.ca)
Heard at Toronto (Video): October 22, 2021
Reasons for Decision
Reasons for Decision
1The applicant brought this urgent motion for an interim injunction this morning. The respondent was only served yesterday evening with voluminous material and I only received the material minutes before the hearing. I make these points only to emphasize the entirely preliminary nature of the steps being taken here and the lack of any determination of the merits of any claim advanced.
2This will be a very hotly contested application. The issues are strongly debated in the public sphere. My role as a judge is a constrained one – it is to apply the law to controversies brought before me to the best of my abilities and without partiality. I intend to place one foot in front of the other in this case with care and deliberation.
3The moving party seeks injunctive relief on behalf of all similarly situate employees of University Health Network being those at risk of termination for their refusal to accept the Covid vaccine. The Notice of Action, on the other hand, is made on behalf of precisely six employees (of the approximately 180 that I am advised remain in the camp of employees refusing the vaccine). I am further advised that the plaintiffs’ counsel has a list of nineteen other employees who were in the process of retaining him when this motion was launched and have not yet been able to complete that process.
4The short term order I am making to preserve the status quo here applies to the six named plaintiffs and to the other employees named in Mr. Perry’s email from 2:00pm this afternoon. This is not a class action proceeding and I have no basis to extend an interim order to non-parties. I am also preserving the status quo not changing it. The parties must take things as they stood when my order was made shortly before 2pm.
5The defendants have raised very significant jurisdictional issues before me, suggesting that I have no jurisdiction to grant the kind of relief sought in respect of unionized employees. Mr. Perry contests that position. On short notice and without a proper briefing of the issues, I am in no position to arrive at a reasoned view on the matter and decline to do so. There may be merit to both positions and I need time to be better briefed.
6There are absent parties to any proper consideration of the jurisdictional questions being raised: the collective bargaining agents for the thousands of UHN employees represented by the several involved trade unions. I need to give them an opportunity to make their views known to me if they so choose. I am advised that they all have grievances pending on the same subject matter one of which will begin hearings on Monday. Their views will be relevant and important.
7I am satisfied that the status quo can be preserved without irreparable harm to any party until a proper hearing can take place on Thursday next. The harm raised by the applicants is potentially serious and cannot be undone. It is alleged that some or all of them may be compelled to take the vaccine against their will because they cannot in their personal and family circumstances take the risk of being left destitute by the policy they are seeking to challenge.
8It appears from the limited evidence before me that nothing material need happen before Thursday at all events. The affected employees are not scheduled to be working in the first few days of next week. What danger their presence at work might potentially have posed is not in issue because they will not be working anyway. All or most of them may have been scheduled to be formally terminated this afternoon. My order granted orally at the hearing shortly before 2 pm has stayed that for the time being at least as regards those of the six plaintiffs and nineteen additional names listed by Mr. Perry as had not already been terminated. If the motion fails, there is no difference between a termination being notified next week or this.
Order
9I ordered the following steps in relation to the Thursday hearing at 10:00am:
a. The plaintiff shall draft its statement of claim: whether or not formally issued, it shall be delivered Monday afternoon and form the foundation of the hearing to take place on Thursday;
b. UHN shall draft and deliver its Notice of Motion setting forth its jurisdictional objections in detail by Tuesday afternoon as well as any required affidavit evidence;
c. The parties shall exchange their facta on Wednesday – I shall leave them to arrange those details;
d. The hearing on the jurisdictional issue shall take place on Thursday at 10:00am for ONE HALF DAY only; and
e. UHN has also undertaken to notify each of its collective bargaining agents of the pending hearing so that they may participate if they are so advised. No formal application to intervene will be required, but they shall conform themselves to the above schedule mutatis mutandis as far as practicable.
10Some closing notes are in order. I am requesting UHN to ensure that the collective bargaining agents are folded into Thursday’s hearing at least. I also request the parties to liaise with the Civil Motions Office to ensure a full list of relevant counsel and email addresses are provided so that the relevant Case Lines invitations can be sent out. There is a lot to do in a short span of time. I am relying on the parties to demonstrate the level of skill and professionalism shown at the short-notice hearing this morning to make this work.
S.F. Dunphy J.
Date: October 22, 2021