Employer Ordered to Provide Personal Protective Equipment (PPE) to Employees

In the decision Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 released on April 22, 2020, the Ontario Superior Court of Justice considered an urgent application by the Ontario Nurses Association (ONA) seeking injunctive relief on behalf of nurses working at various long term care (LTC) homes.

ONA claimed that these facilities were engaged in ongoing breaches of Directives issued by the Chief Medical Officer of Health for Ontario (issued on March 22, 2020 and April 2, 2020 respectively) related to practices and procedures and the supply of appropriate personal protective equipment (PPE) to nurses, including access to N95 respirator masks and the ability to make PPE decisions at the point of care. All of the facilities experienced outbreaks, with more than 110 residents and several nurses contracting the COVID-19 virus. The Union asserted that the lack of necessary PPE and appropriate infection control procedures in the LTC facilities represented:

  • a violation of collective agreements between ONA and the Respondents;
  • a breach of public health Directives related to COVID-19;
  • a violation of the Occupational Health and Safety Act (OHSA) which generally requires an employer to “take every precaution reasonable for the protection of workers”; and
  • an infringement of the Applicants’ rights under section 7 of the Charter of Rights and Freedoms (right to life, liberty and security of the person). This argument failed as the LTC facilities are private entities and not necessarily subject to the Charter.

The LTC facilities asserted that the Directives were complied with and that ONA was really seeking control over the allocation of essential medical resources, such as PPE and in particular, N95 masks. The LTC facilities contended that the injunction relief being sought ignores the reality that PPE is scarce and that difficult decisions were required by management to conserve a limited supply of PPE and the implementation of inventory control measures.  ONA filed grievances in respect of the failure to provide PPE and against these practices under the provisions of various collective agreements.

The employers also argued that this was a labour dispute and that the Court did not have jurisdiction because it arises from the collective agreement and that the grievance/arbitration procedure is the appropriate forum for the dispute, not the Ontario Superior Court of Justice. The Court rejected this argument on the basis that the “arbitral process is a slow and protracted one” and it had inherent jurisdiction to deal with this urgent matter as the only legal mechanism to realistically fill the void. The Court’s rationale may provide some basis for appeal, as the arbitral process can be quick and efficient when necessary.

The applicable legal test to obtain an injunction and secure immediate judicial intervention comes from the decision in RJR-MacDonald v. Canada, where the Supreme Court summarized the requirements as follows: (a) a serious issue to be tired; (b) will the applicant suffer irreparable harm if the injunction is not granted; and (c) does the balance of convenience favour granting relief pending final determination of the matter? The Respondents did not dispute that this was a serious issue and that the supply of PPE in long term care facilities was a serious issue. The Respondents agreed that irreparable harm would result if PPE is not available, but raised the harsh reality that quantities of PPE such as N95 masks were in limited supply, and that by placing control of allocation of these scarce resources to nurses (rather than management), other groups such as health care workers could be harmed. The employers argued that the balance of convenience mandated consideration of the situation as a whole, and that the relief being requested could have a negative impact on other interested parties and the public in general.  The Respondents argued that the injunction would put an unfair amount of power in the hands of the individual nurses, who may not consider the public as a whole. The Court rejected all of the employer’s arguments, stating that the balance of convenience clearly favoured those who were putting themselves at risk on the front lines. The Court concluded that all three steps for an injunction were satisfied.

The LTC homes were directed by the Court to provide nurses working in their respective facilities with access to fitted N95 masks and other appropriate PPE when assessed by a nurse at point of care to be appropriate and required. The Order is temporary until such time that there is a final disposition of the labour grievances, or until further Order of the Court. The Respondents were also ordered to implement administrative controls such as isolating residents and staff as required by the Directives during the COVID-19 crisis. This Order is also temporary in nature until the final disposition of the grievance.

For employers, these circumstances are unique. The severe impact of the COVID-19 crisis in LTC facilities is unprecedented. Managers in these facilities are faced with difficult challenges related to management of scarce resources. The Court’s decision does represent an infringement on management rights to control and direct the workplace. At the same time, the preservation of resources in these uncertain times should not come at the expense of workplace safety. In doing so, employers risk injunctive relief against them requiring the provision of PPE, as was the case here, but could also face quasi-criminal penalties under the Occupational Health and Safety Act if there is a failure to take all precautions that are reasonable to protect the health of workers.