Arbitrator Finds School Board’s Vaccination Policy Did Not Violate the Charter

  • May 13, 2022
  • Emily La Mantia

In Toronto District School Board and CUPE, Local 4400 (PR734 COVID-19 Vaccine Procedure), 2022 CanLII 22110 (ON LA), Arbitrator Kaplan concluded that the mandatory vaccination policy of the Toronto District School Board (the “Board”) did not violate section 7 of the Charter of Rights and Freedoms (the “Charter”) and that the Policy was, on a whole, an entirely reasonable exercise of management rights.

Background Facts

On March 11, 2020, the World Health Organization declared the Novel Coronavirus (or COVID-19) as a pandemic. The next day, the Ontario Minister of Education issued an order requiring that every school in the province close on March 14, 2020. Schools remained closed for the remainder of the academic year.

In September 2020, Ontario schools reopened and mask guidelines were introduced. With the reopening of its schools, the Board introduced a number of health and safety measures, including the installation of 500 air filters at the highest risk schools, physical distancing, and daily screening. Despite these measures, COVID-19 outbreaks occurred in schools and in the community. The Minister ordered schools to close again in January and February 2021, and then again in April 2021 for the remainder of the school year.

On August 25, 2021, Board trustees voted unanimously to develop a mandatory vaccination procedure for Board employees. This was done in anticipation of a return to in-person learning, which was scheduled to begin on September 8, 2021.

The Policy

On September 14, 2021, the Board implemented a policy requiring all employees with direct contact with staff or students at a Board workplace to be fully vaccinated against COVID-19 (the “Policy”). For the purposes of the Policy, “fully vaccinated” was defined as having two doses of an approved COVID-19 vaccine.

Employees were required to provide evidence of their fully vaccinated status by November 1, 2021, or establish that they had a valid medical or Human Rights Code (the “Code”) exemption from COVID-19 vaccination. Pursuant to the Policy, Board employees who did not disclose their vaccination status by the deadline and employees who did not become fully vaccinated within prescribed timelines were placed on non-disciplinary leaves of absence without pay.

Students and their families were not subject to the Policy.

After implementing the Policy, the Board continued to monitor the pandemic circumstances and related changes to public health measures. The Board ultimately repealed the Policy effective March 14, 2022, after the Ministry of Education advised that public school boards were no longer required to have employees disclose their vaccination status.