Citation: Sault Area Hospital and Ontario Nurses’ Association, 2015 CanLII 55643 (ON LA), <http://canlii.ca/t/gl0sz>
  1.       While not binding, a decision of an analyst from the Office of the Information and Privacy Commissioner of Ontario is instructive on these points.[434] The decision deals with a nurse’s complaint about a VOM policy at North York General Hospital in which individuals who received the influenza vaccine had identifying stickers on their badges or a lanyard of a different colour.  The nurse argued that this improperly made her persona health information public knowledge.  Broadly stated, under the VOM Policy, vaccination information is collected about employees and is maintained for a purpose other than the provision of health care to those employees.  As a result, it is excluded under 4(4) of PHIPAThe information is also collected, maintained and used by the SAH for the purpose of implementing a VOM Policy setting out terms and conditions of work and so relates broadly to labour relations or employment-related matters in which the institution has an interest.  As a result, it is also excluded under ss. 65(6) of FIPPA.

  2.       Ultimately, though, these observations on the privacy legislation are obiter and do not affect the determination of these grievances because I have ruled that the VOM Policy as a whole fails to comply with KVP principles and so constitutes an unreasonable exercise of management rights.  In the course of that determination, I have also ruled that I am not convinced that the VOM Policy encourages truly voluntary immunization and/or disclosure of immunization status.

 Final Comments

 336.       I return now to the issue raised at the outset of this Award.

  1.       Let there be no doubt that the intentions and opinions of CEO Gagnon, Dr. McGeer, and Dr. Henry are entitled to great respect.  However, the VOM Policy—a mandated regimen for how patient care is to be delivered—is at the same time a unilaterally imposed term and condition of employment and it is properly and squarely within an arbitrator’s jurisdiction to assess it as such.  While this has not been an easy case because of the volume of expert evidence and the quality of the competing expertise, the only forum in which it can be required that labour relations considerations be addressed is before an arbitrator.

  2.       To review the labour relations implications of the VOM Policy does not disregard or discount the medical expertise.  It simply recognizes that the medical expertise has a different focus that is incomplete for the purposes of the legal question at issue.  While important in assessing what is reasonable, the medical expertise is not controlling in and of itself because it does not engage the labour/human rights/privacy expertise that balances employee rights with scientific information.[435]

  3.       It is surely the case that there are better ways of resolving complex policy issues such as this, in which many stakeholders have an interest, but this does not in any way displace or discredit the legitimate role of labour arbitration.  It is very likely that the science will evolve and opinions about the prevention and control of influenza disease may coalesce into more of a consensus than has been achieved to date.  But, there are lines to be drawn in the meantime. Where their working lives are directly affected, the interests of employees require consideration, and, typically, their unions have recourse to rights arbitration to test judgments that have been made.

 340.       Irving balancing demands nuance and it is not sufficient to claim that scant, weak, “some”, or imperfect data is better than nothing.  While the precautionary principle (“reasonable efforts to reduce risk need not wait for scientific certainty”[436]) surely applies in truly exceptional circumstances, one could not live in a society where only ‘zero risk’ was tolerated.  It cannot be right that a labour arbitrator should effectively abdicate by simply applying Dunsmuir-type deference to expert opinion planted in shallow soil.

  1.       It is also important to stress once again what this arbitration case was not about.  The Award does not address the merits of influenza vaccination–a matter about which the experts agree and about which ONA and the OHA have reached specific agreement in the Central Collective Agreement.   Nothing in this Award is intended to dissuade anyone from the benefit of annual influenza immunization whatever may be the vaccination efficacy rate in any particular year.

Decision

  1.       On the evidence before me, I find the VOM provisions of the SAH Policy to be unreasonable.  Accordingly, for all of the foregoing reasons, I declare SAH to be in breach of Article B-1 (e) of the ONA/SAH Local Agreement and Article 18.07 (c) of the ONA Central Agreement.

  2.       Any question concerning the need, if any, for additional relief is remitted to the parties for their consideration.  I remain seized of remedial issues.

Dated at Toronto, this 8th day of September, 2015

                                                                       

James Hayes

Read the full case via CanLII – 2015 CanLII 55643 (ON LA)

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