Volume 21 | Issue 10 | October 2021
The arbitrator in that case nonetheless found that a negative test is valuable information and a positive test maybe even more so as it leads to quarantine, contact tracing, and so on. This, despite it being an invasive procedure, and in the case of one witness, led to a multi-day nosebleed.
The have been other cases which illustrate that arbitrators are not taking the danger COVID-19 poses lightly. The termination of an employee who failed to follow the employer’s COVID-19 protocols was found to be reasonable as was the termination of a woman who failed to disclose her husband’s COVID symptoms, self-isolated for two days and never contracted the disease.

Legal Opinions
A CBC News article posted on October 3, 2021, took a look at how the Canadian Charter of Rights and Freedoms would hold up in court. Carissima Mathen, a professor of law at the University of Ottawa who specializes in the Constitution commented on several sections and in the end concluded that, “With all of the evidence we have about the harms of COVID…and the particular challenges posed by [the Delta variant], I would think that the balance would probably be on the side of [upholding mandates as] a reasonable limit.”
While she was commenting on vaccine mandates, her commentary on the concept of being coerced to take the vaccine in order to remain employed is most notable. She says that employees facing vaccine mandates are not being forced to vaccinate, they still have a choice. They can go to work somewhere else. That does not seem like a choice at all. To that she says, “The courts have been very clear that it (the Charter) does not include the right to a specific occupation.”You can read the article here.
The Alberta Federation of Labour recently published a legal opinion on their website. It was prepared by Leanne Chahley who represents trade unions in all areas of labor law. She has appeared at arbitrations and before labour relations boards, human rights tribunals, pay equity tribunals, various levels of courts in both Alberta and Ontario and the Supreme Court of Canada.
Her opinion provides insight into some questions many of us have been asking. The first is whether employers have the right to unilaterally impose a new term of employment. A term of employment is a condition that must be met in order for an employee to maintain employment. Usually, it is an educational requirement, possession of any number of licenses or a membership in a professional organization. Any new terms or conditions must be negotiated with the union.
There is caselaw on this even if collective agreements do not have such a requirement spelled out. That case is KVP, otherwise known as the "Rules of . It is well established and remains the go to when assessing the validity of a policy.
Chahley asks, “Do unilaterally imposed policies requiring that employees are vaccinated for COVID-19 unless they can establish an acceptable exemption meet the KVP test?” Her answer is yes “…in almost all cases.”
Her answer is based on a series of assumptions which are: the policy is being implemented to maintain safety of the workers and those they interact with; the policy has a timeline built into it which gives employees enough time to comply; workers who refuse to comply face discipline including eventual termination; and, workers who establish valid human rights reasons for exemption from the policy will be accommodated.
Valid reasons under human rights means that the person is unable to get a vaccine as a result of one of the prohibited grounds. Those are: Race/perceived race or color; Place of origin, nationality, or ancestry; Family of marital status; Sexual orientation; Gender identity; Sex, including sexual harassment or pregnancy; Disability (physical or mental); Receipt of public assistance; Age (18 or more).
In the case of a vaccine, the two most likely grounds are disability and religion. These cannot just be stated, they must be established and supported with proper documentation.
It is important to note that the Saskatchewan Human Rights Commission has publicly stated that it “…accepts and investigates complaints of discrimination based on one of the protected characteristics listed above. The Commission will not accept a complaint based on a personal objection to vaccinations or vaccination mandates.”
Chahley’s opinion assesses the likelihood of success at arbitration on the basis that the vaccine is not safe. She says that the global evidence has led to universal acceptance of the safety and effectiveness of the vaccine. You can access the opinion here.
Vaccine Safety
The Pfizer-BioNTech, AstraZeneca, Johnson & Johnson and Moderna vaccines have all been approved by Health Canada. According to Health Canada, as of September 24, out of the just over 55.5 million doses of the vaccine that have been administered only 0.008% have resulted in a serious adverse event. Here is a link to Health Canada’s page where you can find information regarding COVID-19 vaccine side effects.
As your union representatives, it is not our job to be doctors or epidemiologists. We request information from experts and we use that information when representing our members. When a doctor provides a note saying a worker cannot work for three days, that is a fact which we do not dispute. We will not be disputing medical information in the case of COVID vaccines either.
If you provide medical documentation that says you cannot be vaccinated due to an illness or disability, we will make sure that you are accommodated up to the point of undue hardship.
What we cannot do is dispute medical information provided by Health Canada, Dr. Shahab, your doctor or any of the other Medical Health Officers. We are not medical experts and cannot pretend to be medical experts.
Arbitrators and courts only accept expert evidence from experts. This means doctors, Health Canada, epidemiologists or medical health officers. It is unlikely that a podcast from someone who is not an expert in a field directly related to medicine, vaccines or epidemics would be allowed at arbitration.

Genetic Non-Discrimination Act
We know there is a huge amount of confusing information out there. One thing that keeps coming up is the Genetic Non-Discrimination Act. It is summarized as follows by the Canadian Legal Information Institute:
“This enactment prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Exceptions are provided for health care practitioners and researchers. The enactment provides individuals with other protections related to genetic testing and test results.
The enactment amends the Canadian Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test and provides employees with the other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics.”
This Act is not applicable as an argument against test for COVID-19 because it is the virus genetic code that might get sequenced, not the individuals. The Act does not offer protection for the virus even if it is sourced from your body.
Why Test Only The Unvaccinated?
One question that keeps coming up is: How is forcing only the unvaccinated to get tested at their own cost not discrimination when the vaccinated can also get and spread the virus?
Vaccination status is not a protected ground under human rights legislation. This means that a policy which seeks to test only the unvaccinated is not discriminatory in the legal sense of the term.
Earlier we mentioned KVP rules for policies. Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. LTD is a 1965 arbitration award which establishes tests employers must meet when unilaterally imposing policies as follows:
A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites:
  1. It must not be inconsistent with the collective agreement.
  2. It must not be unreasonable.
  3. It must be clear and unequivocal.
  4. It must be brought to the attention of the employee affected before the company can act on it.
  5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
  6. Such rule should have been consistently enforced by the company from the time it was introduced.
An employer policy that seeks to test only the unvaccinated could theoretically be challenged under the KVP on the basis that its application is “inconsistent”. However, the employer would have a number of way to defend this.
  • The vaccine is effective at preventing serious illness, contagiousness, as well as transmission. It is likely more effective in that regard than testing.
  • Testing everyone would be costly and this is something that employers can factor into the policy decision.
  • The policy is not inconsistent because it is being consistently applied to the vaccinated.
Another explanation is that even though the vaccinated can still catch and transmit the virus, they can do so only at significantly reduced rates. The purpose of testing only the unvaccinated may be to reduce their rate of transmission of the same level of a vaccinated individual.
It is a means of bridging the gap and reducing transmission. It is not a perfect policy – just like the vaccine is not perfect. For these reasons, the legal consensus so far, is that arbitrators will err on the side of the defence (both to employers and to the medical community).
Going Forward
The Union continues to pressure the employer to accept the rapid antigen test results, at the company’s expense, rather than to potentially require PCR testing. We are ever vigilant when it comes to KVP, accommodation requests and collective agreement provisions. We are always willing to explain the situation and our position and we are always willing to listen and to respect and consider all perspectives.
We will keep members updated as more information comes out on this policy and as our legal advice and information changes.
  • Congratulations Mike Neigum (Scaffold Shop) and Michelle who welcomed daughter Emalynn Sharon born September 26, 2021.
To ensure we don't miss anyone, we will rely on each and every one of you to let us know of any schooling, births, marriages, etc. of your friends & coworkers that we can share with the membership!

Please let Ashlyn know of these noteworthy milestones at [email protected] or message her directly.
to the following 594 members:
Darcy Schneider - Instrumentation (October 1, 2021)
Gary Barss - Insulators (October 1, 2021)
Daren Drummond - Section 3 (September 1, 2021)
594 SWAG
Are you interested in sporting Unifor 594 Swag?
Check out our list of swag at:

Employee & Family Assistance Program
The looming layoff and current bumping and displacing notices that have gone out may be causing stress and anxiety which can be extremely harmful to one's mental health. It is so important to take care of yourself especially when working in a dangerous plant. The Employee & Family Assistance Program can help.

EFAP is through Homewood Health and is available 24/7/365. Call 1-800-663-1142 or reach out to a trusted confident, friend or co-worker if you aren't feeling like yourself.