Presentation at the Medico-Legal Society of Toronto on Sept. 29, 2020

1. Considerations for Vulnerable Health Care Workers During
the Covid-19 Pandemic
Ontario Nurses Association v Eatonville Henley Place, 2020 ONSC 2467
Omar Ha Redeye, Fleet Street Law and Durham Community Legal Clinic
A POT POURRI OF CUTTING-EDGE MEDICO-LEGAL CASES
Tuesday, September 29 @ 5:00 – 6:00 PM (ET)

2. Background Facts
• Ontario Nurses’ Association (“ONA”) applied for an injunction
• requiring several long-term care (LTC) facilities to ensure that the nursing staff
receive appropriate access to personal protective equipment (“PPE”)
• allowing nurses to make PPE decisions at the point of care
• LTC facilities responded they had complied with Chief Medical Officer
of Health directives
• Raised a concern of societal/market allocation of scarce and essential
resources (largely around N95 masks)
• AG(O) as Intervenor characterized this as a labour dispute, and
grievances were already filed

3. What PPEs Specifically?

4. Inherent Jurisdiction under CJA
• Court concluded that there was inherent jurisdiction under Courts of
Justice Act, despite pre-existing grievances
• Application of test for injunction
1) A serious issue to be tried (not disputed)
2) The party seeking the injunction would incur irreparable harm if the injunction is
not granted (not disputed)
3) The balance of convenience, taking into account the public interest
• Conclusion: balance favours granting the injunction pending the
determination of the grievance
• THIS IS ONLY INTERLOCUTORY!

5. The Collective Agreement
• Article 6.06 of the Collective Agreement
“Health and Safety”
(i) The Employer shall:
i. Inform employees of any situation relating to their work which may endanger their
health and safety, as soon as it learns of the said situation;
ii. Inform employees regarding the risks relating to their work and provide training and
supervision so that employees have the skills and knowledge necessary to safely
perform the work assigned to them; When faced with occupational health and safety
decisions, the Home will not await full scientific or absolute certainty before taking
reasonable action(s) that reduces risk and protects employees.
iii. Ensure that the applicable measures and procedures prescribed in
the Occupational Health and Safety Act are carried out in the workplace.

6. Precautionary Principle
Occupational Health and Safety Act
Duties of employers
• 25 (1) An employer shall ensure that…
(2)(h) (h) take every precaution reasonable in the circumstances for
the protection of a worker;

7. SARS Commission Report – SARS and Public
Health in Otario
“The point is not who is right and who is wrong about airborne
transmission. The point is not science, but safety. Scientific knowledge
changes constantly. Yesterday’s scientific dogma is today’s discarded
fable. When it comes to worker safety in hospitals, we should not be
driven by the scientific dogma of yesterday or even the scientific
dogma of today.
We should be driven by the precautionary principle that reasonable
steps to reduce risk should not await scientific certainty. Until this
precautionary principle is fully recognized, mandated and enforced in
Ontario’s hospitals, workers will continue to be at risk.”

8. Socially Isolating the Issue
• [90] The Respondents likewise do not dispute that there is a risk
of nurses suffering irreparable harm if the requested relief is not
granted. They go on to argue, however, that irreparable harm to the
nurses cannot be considered in isolation. They contend that the
“harsh reality that quantities of certain forms of PPE such as
N95 masks are limited and in demand across the world, the allocation
of those masks to one group may well lead to masks not being
available to other health care workers working in equally risky
circumstances.”

9. Public vs Private Interests
• [93] I can imagine that the irony of that submission is not lost on
the Applicants. One need only read the affidavits of the individual
nurses in this Application record to understand that they spend their
working days, in particular during the current emergency situation,
sacrificing their personal interests to those of the people under their
care. And given the nature of the pandemic, they do this not only for
the immediate benefit of their patients but for the benefit of society
at large. To suggest that their quest for the masks, protective gear,
and cohorting that they view as crucial to the lives and health of
themselves and their patients represents a narrow, private interest
seems to sorely miss the mark.

10. But What Does the Science Say? (For
Curiousity)
• that patients with underlying medical comorbidities
are more likely to require intensive care, mechanical
ventilation or die from COVID-19
• no degree of confidence about which specific medical
condition confers the greatest risk of worse outcomes
with COVID-19 for risk stratification purposes
• What does this mean for accommodation purposes
(under human rights legislation?)

11. Future Challenges
• Concepts such as “imminent danger” in work refusals difficult to
ascertain in context of COVID-19
• Emergency Management and Civil Protection Act (EMCPA) overrides
all provincial legislation, except OHSA, under s. 7.2(8)
• Human rights accommodation of a comorbidity due to a potential risk
of an adverse outcome has not been adjudicated in Ontario
• Current legislation is not equipped to address the issues presented by
the COVID-19 pandemic