While the onset of the COVID-19 pandemic left society reeling, the subsequent uncertainty affected employers as they sought to maintain their health and safety obligations while wrestling with novel legal issues. In doing so, many employers implemented mandatory COVID-19 vaccination policies, which are being challenged by unvaccinated employees in different forums and giving rise to jurisdictional issues.
In a recent decision of the Supreme Court of British Columbia, Bagri v. Quesnel (City), 2022 BCSC 2003* (“Bagri”), the court considered the civil claim brought by a group of former unionized employees challenging the reasonableness of their employer’s mandatory COVID-19 vaccination policy. Harris & Company was successful in having the civil claim struck on the basis that the reasonableness of such policies is within the exclusive jurisdiction of labour arbitrators, and must be pursued through arbitration rather than the court.
The City of Quesnel (the “Employer”) instituted a mandatory COVID-19 vaccination policy (the “Policy”) which required employees to be inoculated two doses of a COVID-19 vaccine. Employees who could not receive a COVID-19 vaccine due to a human rights ground were exempt from the Policy. Employees who otherwise refused to comply with the Policy were first suspended, and if they continued to refuse to comply, were then terminated. The Union brought a policy grievance and individual grievances for the terminated employees. Some of the terminated employees (Plaintiffs) then also filed a civil action against the Employer and others, in the Supreme Court of British Columbia.
The Legal Arguments
The Plaintiffs contended that labour arbitration was not the proper venue for their claim, as the Policy was aimed at protecting the broader public, rather than regulating the employment relationship, and thus fell outside the scope of the collective agreement. The Plaintiffs also relied on the court’s residual jurisdiction and argued that the dispute raised serious and novel questions of law, including allegations of various breaches of both the Charter and Criminal Code, that are of general importance and therefore beyond the jurisdiction of a labour arbitrator.
An application was then filed on behalf of the Employer to dismiss the Plaintiffs’ claim on the basis as the matter fell within the exclusive jurisdiction of a labour arbitrator, and therefore could not be pursued in court. The Employer argued that the jurisprudence was clear, as enunciated by the Supreme Court of Canada in Weber v. Ontario Hydro  2 S.C.R. 929, that where the essential character of a dispute arises from the parties’ collective agreement, it is within the exclusive jurisdiction of a labour arbitrator. The Employer argued that on the face of the facts it was clear that the dispute was within the ambit of the collective agreement as it centered on a workplace policy that resulted in the termination of the Plaintiffs, and related to the management rights of the Employer under the parties’ collective agreement.
In considering whether it had jurisdiction to hear the claim, the Court stated that the Plaintiffs brought their action based on their status as former employees of the Employer and emphasized that the damages claimed by the Plaintiffs flowed directly from their loss of employment. Although the Plaintiffs argued that broader general rights and policy issues were relevant, the Court cited the Supreme Court of Canada cases and concluded that such issues were “too loosely intertwined with collectively bargaining rights to be sensibly separated.” Ultimately, the Court would need to determine whether the plaintiffs were terminated for just cause. Such an analysis required an interpretation of the parties’ collective agreement and therefore falls squarely within the jurisdiction of a labour arbitrator. As a result, the Court dismissed the employee’s civil claim and awarded costs to the Employer.
Bagri re-affirms that disputes which fall within the ambit of the collective agreement (including disputes regarding the reasonableness of COVID-19 vaccination policies) are within the exclusive jurisdiction of labour arbitrators and may not be pursued through a civil claim in the courts.
This jurisdictional issue is particularly salient at the present moment where unvaccinated unionized employees may wish to turn to courts to seek relief against the employers relating to the implementation of mandatory covid-19 vaccination policies. Bagri also provides support to employers against future jurisdictional claims of unionized employees, where novel workplace policies are at issue.
If you have any questions regarding this article, please contact Lana Tsang.
*Please click on the link in the article to view the PDF.