1.                  ONA objects to a ‘Vaccinate or Mask’ (“VOM”) policy introduced at the Sault Area Hospital, an acute care institution (the “Policy”).  The Hospital requires that healthcare workers (“HCWs”) wear surgical/procedure masks each year throughout the five to six month flu season if they have not received vaccination for influenza.  The grievances allege that the VOM Policy is an unreasonable exercise of management rights and a breach of employee privacy rights. 

2.                  The backdrop to these grievances is that certain distinguished Canadian academic physicians are divided on the VOM question.  It appears to be unprecedented for leading infection prevention and control academic physicians at Mount Sinai Hospital and the University Health Network to oppose each other so directly in a litigation forum, as occurred here.

3.                  Grievances such as these are plainly grounded in a dispute over ‘best practice’ public health policy determination.  It seems to me self-evident that medical judgments and policy decisions relating thereto should be located, primarily, elsewhere. One would think an expert medical forum, where contrary views are welcomed and consensus sought if not achieved, would be presumptively appropriate.[1]  All the more so because it is almost certain that there will be future material change to the scientific fact pattern currently underpinning existing VOM policies.[2]  Aspects of the relevant medical science remain in infancy or appear to be incapable of formal proof, at the present time at least. The opinions of individual professionals continue to move with their understanding of the relevant evolving scientific research.[3]  It is therefore scarcely surprising that there will be honest differences of expert opinion about the ‘best’ health policies and practices for a particular institution at any given point in time.

4.                  What is beyond doubt is that grievances of this type reach one extremity of labour relations adjudication. Whatever judicial deference may be paid to the collectively acquired expertise of labour arbitrators, labour arbitrators are not medical experts.

5.                  This is not to suggest that these grievances were misplaced.  A trade union is typically entitled to challenge what it perceives to be an unreasonable exercise of a management right.  ONA’s members have a direct interest in VOM policies aimed at the conduct of their daily working lives. ONA reasonably objects to a Policy that it believes to be unwarranted. Whatever may be the limitations of a labour arbitration forum, ONA brought these grievances to the only place where it had the legal capacity to demand accountability.

6.                  These grievances, accordingly, raise an important issue about the appropriate engagement of a labour arbitrator with expert evidence.  What approach should an arbitrator take when addressing a challenge to a policy relating to patient care, a subject matter that would normally be expected to fall within the primary domain of healthcare professionals? 

7.                  Where a policy directly affecting employees’ conditions of work connects with the delivery of fundamental health policy—and especially where the medical/scientific underpinnings of that policy continue to evolve—what is the role of a labour arbitrator? Should an arbitrator’s preference for one credible expert opinion over another, following an adversarial process, necessarily be outcome determinative?

8.                  Alternatively, may this employer meet the labour relations test of reasonableness by simple proof that its VOM Policy is supported by medical opinion held by one group of leading academic physicians notwithstanding what may be the equally convincing opinion of another leading group?  Put another way in labour law terms, in a KVP[4] case such as this one, is some version of Dunsmuir[5] deference owed to a credible expert opinion relied upon in good faith by an employer?

9.                  In approaching these questions I have borne in mind that counsel adopted one common legal position despite their disagreement about almost every other aspect of this case.

10.              Both counsel stated that the resulting Award should choose between the contending scientific VOM evidence.  Relying on her interpretation of Meiorin[6], and using Suncor[7] as a recent example, ONA counsel concluded: “that’s the job”.[8]  OHA/SAH counsel referred to Dunsmuir as a guide to the meaning of reasonableness.[9]  However, he also submitted that in considering reasonableness: “the task is to examine…all of the scientific evidence.  In fact, we say that is the evidence that will drive your analysis”.[10]  Counsel cited an observation made by Mr. Swan, a prominent Canadian labour arbitrator, in support:

11.              I have proceeded therefore on the basis of the parties’ joint expectation and reviewed the voluminous body of material presented by them albeit with trepidation.  That will explain in part the unusual length of this Award.  Nevertheless, an arbitration proceeding is not a medical colloquium.  This forum remains a labour relations forum and I have sought to maintain an ultimate labour law lens.

12.              In the result I conclude that counsel were correct.  It is not sufficient for an employer to assert that it reasonably relied upon experts with superb curricula vitae. The calibre of the employer’s experts will always be a crucial fact for consideration but demonstration of that fact is not ipso facto decisive in a contested labour law matter. Dunsmuir principles of judicial review should not be imported to first level rights determination. More is required in my opinion.  And, while caution and some measure of regard may be appropriate in a given case, arbitral timidity is not.

13.              On the merits I sustain the core of the Union position.  I find that the Policy was introduced at SAH for the purpose of driving up vaccination rates.  I also find that the weight of scientific evidence said to support the VOM Policy on patient safety grounds is insufficient to warrant the imposition of a mask-wearing requirement for up to six months every year. Absent adequate support for the freestanding patient safety purpose alleged, I conclude that the Policy operates to coerce influenza immunization and, thereby, undermines the collective agreement right of employees to refuse vaccination.  On all of the evidence, and for the reasons canvassed at length in this Award, I conclude that the VOM Policy is unreasonable.

14.              ONA represents 60,000 registered nurses and allied health professionals and more than 14,000 nursing students providing care in Ontario in hospitals, long-term care facilities, clinics, and in industry, health and the community.[12]

15.              The OHA is a member association that represents approximately 151 public hospitals in Ontario of which 135 are participating hospitals in the OHA’s Central Collective Agreement with ONA.[13] 

16.              SAH provides care and services to residents in Sault Ste. Marie and the District of Algoma.  SAH is an OHA member and a participating hospital. SAH and ONA are parties to a Local Collective Agreement.[14]

17.              ONA filed an Association policy grievance on December 13, 2013.  ONA members filed a group grievance on January 14, 2014.  These matters are consolidated.[15]  They grieve the VOM Influenza Management Policy implemented at the Sault Area Hospital on January 1, 2014.   

18.              The Policy requires the following among other things:

19.              The Policy was applied without alteration for the remainder of the 2013-2014 flu season and throughout the following season in 2014-2015.

20.              These grievances are not about mandatory immunization for influenza as a condition of employment.  Nor do the grievances challenge the desirability of influenza vaccination for HCWs despite some witness differences as to what the scientific literature discloses concerning its short and long term efficacy.

21.              During bargaining for the 2014-2016 Collective Agreement, the OHA and ONA entered into a Memorandum of Agreement (“MOA”) dated March 19, 2014.  Pursuant to the MOA, the OHA and ONA agreed to my appointment to an arbitration process to resolve some of the outstanding grievances related to influenza policies and practices at various participating hospitals.[17] The MOA included a provision that: “Sault Area Hospital shall proceed to arbitration first after which the parties will agree to the order in which the remaining grievances proceed.”[18]

22.              These grievances took a long time to try.  The Memorandum objective of securing an expeditious outcome was not met.  There were the usual prehearing disputes and scheduling exigencies, the details of which are unnecessary to record.  Senior counsel conducted the case in the traditional adversarial manner.  No time was wasted but neither was any stone left unturned.

23.              The parties did agree to seek to achieve a Statement of Fact and Document Brief although the ultimate joint work product[19] was slim.  Reports or will-say statements from proposed ONA experts were followed by reports from OHA expert witnesses and, finally, by ONA responses to those OHA opinions.  Will-say statements for all other witnesses and copies of proposed exhibits were exchanged.  Witnesses were permitted to adopt will-say statements and reports subject to the right to cross-examine. The parties retained a reporting service to ensure that complex medical testimony was taken efficiently and transcribed accurately.

24.              Dr. Michael Gardam and Dr. Camille Lemieux of the University Health Network (“UHN”) in Toronto testified under subpoenae in support of the grievances.  Dr. Gardam is the Medical Director, Infection Prevention and Control, UHN and an Associate Professor, Infectious Diseases, in the Faculty of Medicine at the University of Toronto. Dr. Lemieux is the Associate Director, Infection Prevention and Control, UHN and an Assistant Professor of Medicine at the University of Toronto. She is also legally trained and a member of the Law Society of Upper Canada.

25.              ONA also called Dr. Lisa Brosseau, currently a Professor in the Division of Environmental and Occupational Health Sciences and Director of the Industrial Hygiene Program at the University of Illinois in Chicago, and Dr. Gaston De Serres, MD, PhD who is a medical epidemiologist with the Scientific Group on Immunization at the Institut National de Santé Publique du Québec.  Dr. De Serres is also a Professor of Epidemiology at the Department of Social and Preventive Medicine at Laval University.  He works primarily on vaccine preventable diseases and states that he is “frequently called upon to contribute to systematic analyses to inform public policy”.[20]

26.              The OHA and SAH countered with Dr. Allison McGeer and Dr. Bonnie Henry.  Dr. McGeer is the Director of Infection Control at Mount Sinai Hospital in Toronto and a Professor of Laboratory Medicine and Pathobiology, and of the Dalla Lana School of Public Health, at the University of Toronto. Dr. Henry is the Deputy Provincial Health Officer for the Province of British Columbia.

27.              This arbitration process is indebted to the contributions of these distinguished professionals.  Some of the evidence provided by them is later referred to, inevitably, in sharply abbreviated form. While the professional and research interests of the experts varied to some extent, their extraordinary qualifications, the depth of their experience, and their commitment to the medical profession and public health are beyond dispute.  Their evidence was presented, as one would expect, with integrity. Their professional differences of opinion reflected no lack of respect for those with whom they disagreed. Professional courtesy however did not prevent them from vigorously expressing their opposing points of view. 

28.              In the result the hearing transcripts ran to more than 3500 pages.  There were 249 exhibits several of which constituted substantial volumes of material in themselves.  Among the exhibits were over 100 academic articles, reports, and commentaries from medical and scientific journals many containing complex statistical material designed to be understood by experts and professionals in the fields of their respective inquiries.

29.              Some of these scientific journal articles contained meta-analyses: summaries, reviews and/or critical commentaries concerning the relative quality of randomized controlled trials, observational and experimental studies, investigations, and related literature. The meta-analyses and literature reviews contained many conflicting evaluations and the experts who testified in this case, in turn, often differed about the conclusions they drew from those analyses and reviews.

30.                ONA maintains that the evidence supporting masks is “weak”.[22]  Masks are of negligible use in the combat of influenza transmission by or to HCWs and patients.  A VOM policy resting upon “objectively flawed” evidence for its “scientific foundation cannot be seen as a reasonable evidence based policy”.[23]

31.              The Hospital failed to reconsider the merits of the Policy when the extent of the extreme mismatch of the influenza vaccine with the most common 2014-2015 strain of influenza became known early in that flu season.[24]  It did not then decide to mask all employees whether or not they had been vaccinated. That failure provides a further demonstration that the Policy is inherently illogical: an illogical policy is not a reasonable policy.

32.              ONA submits that: “the process followed at SAH [concerning the Policy] goes directly to its reasonableness”.[25] The VOM Policy was presented to the unions as a fait accompli.  The Hospital provided no opportunity for affected health care professionals to engage in legitimate dialogue about the core of the Policy before its adoption was determined.  There was internal professional opposition to VOM at the highest levels[26] at the outset. The Hospital failed to consult external consultants who were on retainer to provide that very advice.[27]

33.              These fundamental flaws, says ONA, reveal the true purpose of the Policy; that is, to drive up vaccination rates through coercive means.  The motive is illegitimate. It is unpleasant to wear masks for months at a time. The compulsory wearing of an unnecessary mask is imposed as a “consequence” for an employee’s failure or refusal to accept or submit to vaccination. Such coercion undermines the individual right of employees to choose or decline to be vaccinated, a right that has been collectively bargained. Coercive intention is not reasonable intention.

34.              The Policy violates employee privacy rights. A Hospital-wide posting[28] explains to the public that masks are required to be worn by unvaccinated employees.  The mask requirement amounts to compulsory disclosure of personal medical information.  KVP should be applied having regard to the framework set out in Peace Country Health[29]: “

35.              For these reasons, the Hospital’s adoption and implementation of VOM constitutes an unreasonable exercise of management rights. The Policy should be struck down on traditional KVP principles.

36.              The OHA and the Hospital defend the Policy as a valid patient safety measure[31] supported by highly credible experts. The primary purpose of a VOM policy is source control; that is, to prevent transmission from unvaccinated HCWs to their patients when shedding influenza virus prior to symptom onset, or, in cases of asymptomatic infection.[32]  These parties submit that: “the Policy reasonably balances the interests in protecting patient safety against the potential deadly infectious disease of influenza with ONA members’ personal autonomy and privacy”.  The Policy is “consistent with SAH’s legal, contractual and ethical obligations as a public hospital”.[33]

37.              The OHA and the Hospital submit that the process issues raised by ONA are misguided and peripheral: ”The critical analysis is with respect to the scientific evidence.”[34]  The Memorandum plainly envisages the challenge to the SAH Policy to be a lead case: “…it would be unreasonable to analyze the reasonableness of the Policy...by focusing on local evidence of development and implementation of the Policy or by focusing on evidence of the efficacy of the influenza vaccine in one influenza season”.[35]

38.              Citing Dunsmuir and other authorities concerning the standard of judicial review, the OHA and Hospital also submit that arbitral focus should be “to determine whether the Policy falls within a range of acceptable and rational solutions; it is not to assess whether the same policy would have been implemented by ONA”, or, “whether SAH exhausted all possible alternatives”.[36]

39.              The Central Collective Agreement and the Local Collective Agreement together constitute the collective agreement for each of the participating hospitals, including SAH (the “Collective Agreement”).  The present Collective Agreement has a term of April 1, 2014 to March 31, 2016 and the previous Collective Agreement had the term of April 1, 2011 to March 31, 2014.[37]

40.              The ONA/SAH Local Agreement contains the following management rights clause:

41.              The ONA Central Agreement includes the following provisions:

42.              The specific VOM issue here in dispute has been addressed by a Canadian labour arbitrator once before.   See: Health Employers Assn. of British Columbia (2013), 237 L.A.C. (4^th) 1 (Diebolt) [“Diebolt Award”].     

43.              That Award records that the issue was heavily contested by an impressive group of expert witnesses, supported by a large body of documentary material.  Dr. McGeer and Dr. Henry gave evidence in that earlier proceeding on behalf of the employers.

44.              In the result, Arbitrator Diebolt sustained the challenged policy as “a valid exercise of the Employer’s management rights” and dismissed all of the other objections that were raised.  That VOM policy does not materially differ from the Policy disputed in the instant grievances. It appears that the arbitrator’s general preference of the evidence of Dr. McGeer and Dr. Henry was a decisive factor in reaching the conclusion that he did.[40] 

45.              Counsel for the OHA/Hospital submits that the Diebolt Award was “a thorough and reasoned decision supported by a substantial body of expert evidence and jurisprudence”.  Citing numerous authorities including Irving Pulp & Paper Ltd[41] he submits that: “principles of certainty, consistency and predictability apply to ensure that adjudicators give appropriate consideration and weight to past decisions”.[42]  Counsel also referred to University Health Network (CM-34) where Arbitrator Surdykowski stated that: “Of course there is a first case on every issue, but even here an arbitrator will generally follow even a first reasoned decision on an issue unless he is convinced that it is wrong.” [43]

46.              I have paid close attention to the Diebolt Award.  However, none of the ONA witnesses heard in this matter testified before Arbitrator Diebolt.  As previously mentioned, the Union in the instant case called witnesses with expertise in epidemiology as well as infection control.  While union witnesses before Arbitrator Diebolt had some training in epidemiology, their primary interests lay elsewhere as he noted. [44]  The Diebolt Award does not disclose that the experts in that case were pressed in detail with each of the scientific and medical investigations, studies, and literature upon which their opinions were based as both counsel did here comprehensively with skill and determination.

47.              Research and related commentary in the field has not stood still.  In such a situation the precedential value of previous decisions will be more limited than the more typical second, third, or umpteenth view of a standard collective agreement provision.  This is even more so where the statutory regimes governing the first and subsequent arbitrations differ, as is the case with the Diebolt Award and the present matter. 

48.              As previously stated, ONA takes the position that the Policy was presented to Hospital employees as a ‘done deal’ with no room to consider the merits of a VOM policy.  It says that this lack of process demonstrates that the Policy was never about the validity of a mask-wearing component and all about imposing a negative incentive upon employees to opt for what amounts to, for many of them, involuntary vaccination. The Union states that lack of process goes to the unreasonableness of the Policy. 

49.              On the other hand the OHA/SAH maintains that focus on local SAH evidence is a distraction.  What these grievances require is an examination of the scientific evidence underpinning an evidence-based, patient safety VOM policy that has been introduced at many other Ontario hospitals.

50.              Given the position taken by ONA on this issue, I find it preferable to outline what occurred at SAH at the outset of this Award.

51.              Ron Gagnon[45], the Chief Executive Officer of SAH, testified by will-say Statement.  He said that earlier disturbing critical incidents at the Hospital “shaped his beliefs and actions, and those of SAH, with regard to safety”.  He and his Senior Management Team (“SMT”) were concerned about the low rates of influenza immunization at SAH for its employees, physicians, and volunteers.  Mr. Gagnon stated that the Hospital’s Human Resources Group was engaged to develop a policy.

52.              Minutes of an SMT meeting held on January 30, 2013 record the following discussion:

53.              A Briefing Note prepared for the SMT meeting on February 6, 2013 supported a motion to approve “a new policy to be enforced in the fall of 2013 requiring all employees, physicians and volunteers that are involved in direct patient care to be immunized or wear a mask”.  Inter alia, reference was made to such a policy having been implemented at Health Sciences North in Sudbury.[47]

54.              Minutes of the February 6, 2013 SMT meeting record the following:

55.              Chris Johns, Manager, Human Resources and Corporate Safety, was asked in February 2013 by his Director “to make the policy more robust, to increase immunization rates, to protect the patients, and to look at the idea of a group plan implementation.”[49]  Mr. Johns is not a regulated health professional and has no infection control background.  He was not then aware that the Hospital had infection control consultants on retainer. 

56.              The policy was first given to Occupational Health which deals with employee safety, not patient safety.[50] In February 2013 Mr. Johns asked Occupational Health Nurse Carolle Manzo “to do some research as to instituting a policy of getting influenza vaccination or wearing a mask for the season in patient care areas”.[51]  Neither the normal process for policy development for occupational health, or for infection control matters, was followed.[52] 

57.              Ms. Manzo assumed that “the decision had been made that the policy would be a vaccinate or mask policy” when she and Mr. Johns were charged with drafting a policy in February 2013.[53]

58.              Ms. Manzo compiled literature and various policy statements and spoke with an occupational health colleague at Health Sciences North in Sudbury where a VOM policy had been instituted.[54]  A first draft of a VOM policy was prepared based on Health Sciences North.[55]  She was not asked to look into the human rights aspect of the policy.[56]  She did not review the existing Hospital policy concerning Infection Prevention and Control (“IPAC”).[57] She did not present or give to anyone copies of the research that she conducted.[58]  Ms. Manzo prepared the VOM draft policy based on her understanding that influenza is transmitted by large droplets and aerosol generating procedures only.[59]  No one asked her to look at the efficacy or effectiveness of the surgical masks for influenza.[60]  She did not ask for assistance with respect to obtaining an expert opinion as to masks or the transmission of influenza.[61]

59.              The SAH By-Laws provide for a standing committee called the IPAC Committee whose purpose is “to foster the prevention of infection, especially nosocomial infections in the hospital and patient safety”. [62]  The Committee was not asked to look into the issue of either transmission of influenza or whether the wearing of a mask would impact such transmission.[63] Nor did Mr. Johns conduct any research or look at any such evidence.[64]

60.              On June 9, 2013 Mr. Johns sent an e-mail to the heads of all SAH bargaining agents including Glenda Hubley, President of ONA Local 46.  The e-mail[65] included the following and indicated that a VOM policy would be in place:

61.              Ms. Hubley responded to the e-mail on the same date advising that:  “The Union reserves the right to grieve.  Please be advised that any ONA member sitting on this committee is not a representative of the ONA and does not represent the ONA’s view point or opinions on the matter.” [67]

62.              Responsibility for the Policy was transferred from Human Resources (Occupational Health) to IPAC in September 2013.[68]  The SAH By-Laws provide for such a standing committee.[69]   An Influenza Planning Committee had been struck earlier. Occupational Health deals with employee safety while IPAC deals with patient safety.

63.              Minutes of the July 11, 2013 IPAC Committee Meeting include the following references to Dr. Heather O’Brien.  Dr. O’Brien was and remains the Chief of Medical Staff and Director of Medical Care at the Hospital:

64.              The first meeting of the Influenza Planning Committee was held on July 18, 2013.[71] 

65.              A further meeting of the Influenza Planning Committee was held on July 29, 2013 but there were no additional meetings of that Committee in August, September, or October.  There was no discussion about the following items: mask effectiveness, vaccine effectiveness, privacy issues, stickers, eye protection, surgical or procedural masks as opposed to respirators.  No expert opinion was sought concerning masks. [72]

66.              Mr. Johns and Ms. Manzo prepared a Briefing Note dated September 13, 2013 for the SMT “to update them on the progress of the Influenza Planning Committee, the policy that was developed during that committee.  Also, the mask situation, the cost that would be involved in implementing the policy”. [73]  The Briefing Note included the following:

67.              SAH has a Consulting Services Agreement with UHN.  Dr. Lemieux and Dr. Gardam are the UHN physicians responsible for providing “infection prevention and control consultation services to SAH”.  The appended Schedule to that Agreement includes but is not limited to the following “IPAC consultation on an as needed basis”:

68.              Dr. Lemieux and Dr. Gardam were not consulted by the Hospital concerning its VOM Policy[76] although infection control practitioners at SAH typically do so “especially in a situation of developing a new policy that hasn’t historically been within the manual”.[77]

69.              On October 7, 2013 Natalie Marcello, who was the IPAC team lead at the time[78], advised Dr. Lemieux by e-mail[79] about the new VOM policy and received the following response less than two hours later:

70.              On October 11, 2013 the Workers’ Member Group of the Hospital’s Joint Health and Safety Committee objected strongly to the draft VOM policy and proposed amendments that would have stripped it of its intended VOM purpose.[81]

71.              An IPAC Committee Meeting was held on October 9, 2013 that included Johanne Messier-Mann as Chair.  Ms. Messier-Mann was the Chief Nursing Executive at SAH and the Manager of the Hospital’s IPAC Department.  Also in attendance was Dr. Kim Barker who was then the Medical Officer of Health for the District of Algoma. Minutes of that meeting include the following excerpts from discussion of the immunization policy:

72.              Ms. Marcello had been told prior to the October 9, 2015 meeting that any change to the existing policy would have the “mask piece” written into it.[83]  She understood the group in attendance at that meeting agreed that the VOM policy should not be supported.[84]

73.              Ms. Manzo was also in attendance at the October 9, 2015 meeting.  She confirmed that the group as a whole thought that the purpose of the VOM policy was to get more people vaccinated.[85]  She agreed that: “it wasn’t that the mask was to protect the patients, but it was to up the immunization rate to protect the patients”.[86]

74.              Mr. Johns did no follow-up concerning the IPAC comment of October 9, 2013 that: “there is no evidence that wearing masks reduces transmission”.[87]

75.              Several focus groups were held with employees in various positions beginning on October 9, 2015.  Mr. Johns stated that attendance was as low as two and as high as seven.[88]  The number of participants represented a small fraction of the total number of SAH employees.

76.              A Briefing Note to the SMT dated November 6, 2013 was prepared by the Chief Nursing Executive Johanne Messier-Mann and Kim Lemay, SAH Director, Human Resources.  The Note discloses approval by the Chief of Medical Staff Dr. O’Brien.  It included the following:

77.              On November 13, 2013 Mr. Gagnon and Dr. O’Brien sent a Message to all SAH employees, physicians and volunteers that included the following:

78.              Minutes of the December 13, 2013 Influenza Planning Committee record that: “Discussion ensued on the expected upsurge of staff who may want to receive their flu shot after the policy is implemented”. [91]

79.              The Policy was implemented on January 1, 2014 when the target 70% influenza vaccination rate was not met.  Neither the Influenza Planning Committee nor the IPAC Committee was consulted about any best evidence concerning the 70% or 80% rates and those committees did not discuss those target rates.[92]  Hospital employees had been kept apprised of the level of vaccination rates being achieved on an ongoing weekly basis by the publication of chart presented “flu shot thermometers”.[93]

80.              On January 6, 2014 Mr. Gagnon and Dr. O’Brien issued a further message that included the following and also attached a media release announcing the VOM Policy: 

81.              Notices were posted throughout the Hospital bearing the title “Attention Patients and Visitors”.  The purpose was to help explain to visitors why they would be seeing employees wearing masks and to encourage them to wear a mask if they had not been immunized.[95] The Notice began with the following statement:

82.              The VOM Policy was maintained in force for the balance of the 2013-2014 flu season until the season was declared ended on April 30, 2014.[97] 

83.              The VOM Policy was in place in the following flu season from November 15, 2014[98] until May 6, 2015 when it was terminated following discussions with Algoma Public Health.[99]  The Policy was maintained ‘as is’ throughout that season despite knowledge at an earlier date[100] that there was a significant mismatch of the vaccine with the most common strain of Influenza A then prevailing.[101]  The Hospital did not require everyone to wear a mask whether immunized or not despite the known mismatch.[102]

84.              There were no outbreaks of influenza at the Hospital in 2013-2014 and no incidents of hospital acquired influenza.[103]  There were three Influenza A outbreaks on three units during the 2014-2015 flu season[104]. Nine of the twelve patients affected had been vaccinated.[105]  Three of the four staff who contracted influenza like illness had been vaccinated for influenza.[106]  The measures taken did not require that all nurses wear masks.[107]  The only prior influenza outbreak within the last five years had been at the antiquated Plummer site of the Hospital that has now been closed.[108]

85.              The Infection Prevention & Control Committee has issued various other policies over the years. 

86.              The OHA and the Hospital stress that masks are worn in numerous areas of SAH for many different reasons. [109]  The existing SAH Infection Control Manual provides for “additional precautions” “to protect staff and patients” “based on the mode of transmission (e.g. contact, droplet, airborne)”.[110]  It requires that a surgical mask and eye protection must be worn if within 2 metres of a patient as a droplet precaution:

87.              The Policy in issue likewise requires that employees infected with the influenza, who must continue to work, “should not work with high risk patients and must wear a mask and gloves and practice good hand hygiene during patient contact”. [112]

88.              Compared to many other situations involving expert evidence, in this case most people will have some basic reference points that help in tracking the evidence.   Virtually everyone has some direct personal experience with the flu.  I expect therefore that most people understand at a basic level that: (i) flu is contagious,  (ii) flu is more or less contagious at different points, (iii) some kind of transmission is required for flu to spread, (iv) steps may be taken to slow and/or reduce the spread.  Against this backdrop, the expert evidence adduced in this matter, while complex, is not entirely inaccessible. 

89.              In reaching their differing conclusions about VOM policies, stated again in lay terms, the experts were in strong disagreement about the following issues: (i) the extent that unvaccinated HCWs pose a risk to patients of giving them the flu, (ii) whether there is any serious risk that symptom-free HCWs will give patients the flu, (iii) whether masking HCWs serves any real purpose.

90.              The following review of the evidence is organized in this way.

91.              First, descriptions of influenza are provided.  This section is not controversial but it is important to recognize the serious and complex public health challenge that the disease presents.

92.              Second, the concept of transmission is explained.  This is not a controversial topic either.  One must understand the concept of transmission to appreciate why a masking policy is even considered.

93.              Third, there is a general policy piece.  It identifies the goal of VOM policies and outlines the elements involved. This section is a prelude to the controversy and identifies the experts’ disagreement about key elements of the Policy. What is the burden of influenza disease acquired from unvaccinated HCWs?  Is there a risk of asymptomatic HCWs spreading the disease to patients?

94.              The fourth section relates to the efficacy of vaccination.  The experts agree that vaccination is the best available option to combat influenza generally. They agree that the overall range of effectiveness of the vaccine is approximately 60%.  But they do not agree that there is proof that the vaccination of HCWs reduces morbidity and mortality in acute care hospitals.  This section contains a relatively deep dive, for lay purposes at least, into the medical/scientific evidence surrounding a fundamental precursor to the VOM dispute; namely, is it possible to identify an unvaccinated HCW problem?

95.              The fifth section tackles the significant expert dispute over asymptomatic transmission.  The OHA/SAH experts assert that the primary reason for requiring HCWs to wear masks is that influenza virus may be shed asymptomatically.  Is there evidence to show that this is true, or, sufficient evidence to demonstrate that there is a problem of sufficient proportion to warrant a VOM policy?  

96.              The sixth section addresses the crucial expert debate about the use of masks. Is there sufficient medical/scientific evidence to support a mask-wearing component?  This section also includes a recitation of the fact evidence concerning the alleged adverse effects of masking, the alleged incursion into the privacy interests of employees, and the alleged inconsistent enforcement of the mask-wearing requirement.

97.              The seventh section speaks to what happened in the 2014-2015 vaccine mismatch year. ONA claims that a large number of vaccinated employees, none of whom are required to mask, are as exposed to influenza as those who are unvaccinated.  The Hospital’s failure to require mask wearing by everyone, particularly in a mismatch year, is illogical says the Union. This section includes the experts’ opinions concerning the ‘why not mask everyone’ question.

98.              The eighth section shifts to the broader policy context in which the specific VOM Policy exists. Are there vaccination requirements for diseases other than influenza? Have there been other studies or recommendations?  Do these speak to the reasonableness of the current Policy?

99.              I turn now to the first section.

100.         There is no dispute about the nature of influenza and the fact that the disease is complex. 

101.         Influenza is a subset of influenza-like illness (“ILI”) that is, in turn, a subset of acute respiratory illness (“ARI”).  Dr. De Serres estimated that influenza constitutes 30% of ILIs on average[113] and Dr. Henry stated that between one third and one half of ILIs were influenza depending on the season. [114]  Dr. McGeer explained that the percentage of ILIs likely to be influenza may be higher than 20-35% depending on the point of the influenza season[115].  She went on to say:

102.         Dr. Henry explained in her initial Report:

103.         Dr. De Serres explained in his Report:

104.         Dr. McGeer explained that influenza preferentially infects the cells at the back of the nose and throat and is almost always limited to those cells; the virus co-opts those cells to reproduce and destroys them in the process.  Symptoms start when there is local damage to those cells and immune response can cause inflammation and other systemic reactions.  Bacterial pneumonia is a complication because one no longer has the intact lining of the throat for protection.  There can be exacerbations of asthma.  Complications arising from influenza are generally what cause the most burden of illness.[119]  Issues may also arise for persons who have underlying lung disease, heart disease or who are receiving treatment for cancer.[120]

105.         Dr. McGeer commented upon the seriousness of the disease in this way:

106.         A and B strains of influenza, particularly the A strain, mutate quickly and can vary by geographic region.  As a result a new vaccine is required annually and its composition must be determined well in advance of any upcoming flu season.  The ability to predict what will become a predominant circulating strain is imperfect, in part because the circulating virus may drift so that the vaccine is no longer a match.[122]  Dr. McGeer testified that:

107.         There is no dispute that the best currently available method to prevent the transmission of influenza is the influenza vaccination albeit that the vaccine is not 100% effective.  On average, based on all population ages and depending upon the number of years considered, the witnesses accepted that there is an overall range of effectiveness close to 60%.[124]  And, notwithstanding debate about the level of proof concerning the measurable outcome of vaccinating health care workers, there is general agreement that present vaccines are the best intervention available for seasonal influenza.[125]  There was some discussion by witnesses during the hearing about the possible negative impact of repeat vaccination but this issue appears to be a matter for continuing review.[126]

108.         There is also no dispute that, with a vaccination efficacy rate in the range of 60%, many vaccinated HCWs will also contract influenza.[127]  The level of protection afforded by the vaccine will depend upon how far the circulating strain has drifted from the vaccine components.[128]  It will not protect against ILIs or ARIs that are not influenza.[129]

109.         Nor is there any question that the range of effectiveness for the vaccine varies within age and population groups.  Dr. Henry explained:

110.         Dr. McGeer testified that:

111.         There is general recognition that development of an effective seasonal influenza vaccine is fraught with difficulty.  Dr. McGeer repeated a comment in her evidence that sums it up: “Nancy Cox who just retired as the CDC’s lead person on influenza is famous for saying, ‘when you’ve seen one influenza season, you’ve seen one influenza season’”.[132]  The extent to which the influenza vaccine will be matched to circulating strains of influenza cannot be known until the season unfolds.  The 2014-2015 flu season was a particularly bad mismatch year.

112.         It is important to understand the concept of transmission because a stated purpose of a mask is to prevent HCWs from giving patients the flu.  As explained by Dr. Henry:

113.         Transmission of influenza from one infected individual to another requires both shedding of virus and transportation.  Shedding of virus is not the same thing as effective transmission to another.  There must not only be shedding but also a sufficient amount of live replicating virus shed close enough to susceptible individuals to project the viruses onto receiving respiratory mucous.[134]

114.         In her Report, Dr. Henry explained these concepts in this way:

115.         Dr. McGeer said that:

116.         The point agreed upon by all of the experts is that virus shedding without transmission is of no concern.  As explained by Dr. Lemieux:

117.         There are also important questions about proximity of a virus shedder to a potential recipient and about the size of droplets/particles that are produced.

118.         When asked how influenza gets into a person’s system, Dr. Henry explained that the receptors that allow the virus to attach to cells are very common in the back of the nose and throat but that there are some receptors deep in the lungs that are still under investigation.[138]  She also testified that:

119.         Dr. De Serres said:

120.         Dr. McGeer testified that:

121.         Dr. Henry said:

122.         Dr. Gardam agreed that large droplets are a method of transmission[143] as did Dr. Lemieux[144] and Dr. De Serres[145].  When asked whether small droplets are considered to be a method of transmission, Dr. Gardam stated that:

123.         Before moving to assessing the merits of the VOM policy under review, it may be useful first to consider what might be termed ‘best’ practice for public health policy determination.  In his initial Report, speaking generally about public policy analysis, Dr. De Serres explained that:

124.         Dr. De Serres explained what is meant by “burden of disease”:

125.         Moving on to the specifics of a VOM policy for HCWs, Dr. De Serres stated that:

126.         He went on to identify as a threshold question the question of whether it is known that unvaccinated HCWs are infecting patients. In his words:

127.         In addition to the potential influenza disease burden of unvaccinated HCWs, Dr. De Serres also identified some other significant factors at play in any VOM analysis:

128.         As will later be seen, at least two of these factors were the subject of serious disagreement by the experts who testified in this proceeding. They do not agree about the disease burden carried by unvaccinated HCWs.  They do not agree about asymptomatic transmission.

129.         The experts all agree that the question of the disease burden carried by unvaccinated HCWs is important because, at root, any VOM policy is ultimately grounded on the assumption that the disease burden from this source is significant.  However, there is major disagreement about the medical/scientific evidence.  The ONA experts do not accept that the evidence supports the proposition that increasing HCW influenza immunization rates serves to protect patients from morbidity and mortality.  The OHA/SAH experts maintain that the evidence is strong.

130.         Dr. De Serres went on in his Report to explain more fully why he holds the view that accurate quantification of the disease burden of unvaccinated HCWs is important:

131.         Dr. McGeer has not estimated the number of hospital acquired deaths due to influenza and does not know the number.[153]  She accepts that any VOM policy could only affect a subset of the annual total of influenza deaths.[154]  She explained that:

132.         The focus of the discussion here, to be clear, is upon unvaccinated HCWs. No one doubts that there are other potential vectors for the transmission of influenza to patients; for example: family members, other visitors, fellow patients, not to mention vaccinated HCWs who contract influenza nevertheless.

133.         On an earlier occasion Dr. De Serres had joined Dr. Danuta Skowronski and Dr. David Patrick in a Letter to the Editor which included the following comment:

134.         Dr. Henry agreed with this observation by Dr. Skowronski and Dr. Patrick who are her colleagues at the British Columbia Centre for Disease Control:

135.         Dr. Henry agreed that no VOM policy would influence influenza in the community[158].  Dr. McGeer denied that she had used or recommended the use of community burden in the assessment of development of such a policy.[159]

136.         In the final analysis, Dr. McGeer accepted Dr. De Serres’ concern about the difficulty of establishing the burden of disease attributable to unvaccinated HCWs but deemed it irrelevant because of her interpretation of the published randomized controlled trials  (“RCTs”) and other studies:

137.         What Dr. McGeer’s Report refers to as “now compelling evidence from the strongest type of studies (5 randomized controlled trials)” is completely rejected by the Union’s experts.  Indeed, accepting the assessment of its experts, ONA asserts that: without the RCTs[161] that they depend upon, the OHA/SAH case is “entirely unsubstantiated” and a VOM policy “which relies entirely on it as scientific foundation cannot be seen as reasonable evidence based policy”.[162]

138.         Dr. De Serres led the attack on the RCTs cited by the OHA/SAH experts and began by challenging the widely varying published estimates of deaths per year in Canada due to influenza.[163]  Dr. De Serres cited meta-analyses published by others, conducted his own analyses, and provided a detailed critique of each RCT cited by the OHA/SAH experts.[164]  It was his opinion that the long-term care RCTs “suffer from serious methodological problems and provide results that are mathematically impossible under any reasonable hypothesis”[165] and that the sole RCT conducted in an acute care setting “is a methodological mess with respect to the estimation of benefit to patients”.[166]  He stated that: “Given the very serious flaws in the 4 RCTs conducted in LTCFs and the single RCT in acute care, I conclude that the scientific basis for the efficacy of increasing HCW vaccination to protect patients against deaths is extremely poor”.[167]  And, in his original Report, Dr. De Serres had concluded that:

139.         Dr. De Serres explained in detail why he preferred the conclusions of the Cochrane group[169] following their meta-analyses of the issue as opposed to those of the authors of a U.S. Centre for Disease Control publication.[170] [171]  The 2010 Cochrane review concluded that: “there is no evidence that vaccinating HCWs prevents influenza in elderly residents in LTCFs”.[172]  The US CDC [Ahmed] review concluded that:

140.         ONA also points to other critiques of these trials and studies[174] emphasizing the World Health Organization report’s assessment that the four long term care RCTs had “very serious” limitations in study design and other “serious” deficiencies concluding that: “Our confidence in the estimate of effect of influenza vaccination of HCW on influenza and related outcomes in elderly living in long term care facilities is low”. 

141.         Dr. Gardam and Dr. Lemiux also raised concerns including questioning the applicability of long-term care studies to acute care settings. [175]

142.         Dr. McGeer had quite a different opinion of the RCTs, one that she had maintained before Arbitrator Diebolt, and that she expressed with renewed vigour given a later commentary and meta-analysis, published after the Diebolt Award was released, that she saw as supportive.[176]  Dr. McGeer was cross-examined extensively about the details of these studies and was prepared to concede some of their limitations but did not give ultimate ground.  She explained her view that from a data perspective the Ahmed review and the Cochrane review say exactly the same thing.[177] She also tackled head on the reasons provided by the Cochrane investigators for their conclusion that the data should not be believed.[178]  In her opinion:

143.         Dr. McGeer did acknowledge an important difference between long-term care and acute care settings however:

144.         Dr. McGeer maintained her opinion[181] that the significance of the RCT conclusions should be considered supported by other observational and experimental studies[182] in addition to those referred to in the Ahmed meta-analysis.[183]  She testified that:

145.         In her Report Dr. Henry also referred to observational studies as supporting the data she said was derived from the RCTs[185] but acknowledged that these studies related to long term care and not acute care settings.[186]  She was cross-examined at length concerning the studies referenced in this section of her Report[187], some that dealt with other closed community settings, and agreed that they were “clearly not referring to a healthcare setting”.[188]

146.         Witness commentary concerning the observational/experimental studies relied upon in the McGeer/Henry Reports is set out in Appendix A to this Award.  I conclude from a review of these studies, and the expert witness commentary, that they do not disclose a consistent position. They address a wide range of issues in a wide range of settings.  Some are not supportive of the OHA/SAH experts’ claim.  Some provide weak support at best. Some have nothing to do with the issue in question.  Some have acknowledged study design limitations. 

147.         There was considerable expert disagreement about asymptomatic transmission although there was no dispute about the importance of the issue in assessing the merit of VOM policies. 

148.         To repeat, according to Dr. McGeer in her Report, the primary purpose of having unvaccinated HCWs wear a mask is to address transmission when they are shedding virus either prior to symptom onset or if they are asymptomatically infected.[189]

149.         As will be seen, there is dispute as to the extent that asymptomatic transmission poses a theoretical risk, a minimal risk, or a real risk commanding a response.  The parties do not agree as to the size of the window in which such transmission might occur.  They do not agree about the likelihood, frequency, or strength of asymptomatic transmission and whether or not scientific study has progressed to a point where it can say anything meaningful in an evidence-based way about these matters.

150.         In their joint Reply Report, Dr. Gardam and Dr. Lemieux explained the central importance of the issue in this way:

151.         ONA counsel highlighted the point in her final oral argument after posing a rhetorical question about whether the mask policy made sense:

152.         The question of asymptomatic transmission is made even more complex by the recognition that vaccinated, as well as unvaccinated, individuals may acquire influenza and that vaccinated persons may be protected from severe illness but still have attenuated illness.[192]

153.         Dr. McGeer stated: “We know that people shed influenza in asymptomatic infections and before they develop symptoms….we need to worry about people who are asymptomatic or minimally symptomatic even if we are sending home people who are ill.”[193]  On the other hand Dr. McGeer also noted that the science was imperfect:

154.         One exchange of views is set out in the paragraphs immediately following.

155.         Dr. De Serres acknowledged that a person may shed virus while asymptomatic[195] but commented in his Report that:

156.         Dr. McGeer responded this way:

157.         In his rebuttal Dr. De Serres relied upon a literature review stating that:

158.         While giving oral testimony about possible asymptomatic transmission, citing Carrat et al[199] Dr. De Serres stated that:

159.         Dr. Henry stated: “people can release virus into the community that’s potentially transmissible to others even before they show symptoms themselves”.[201]  She also explained that: “it’s absolutely clear that the first couple of days after symptoms start is when you’re most transmissible to others.  But there is evidence to support that it can be transmitted before you show symptoms yourself”.[202]

160.         In direct examination Dr. Henry stated that the pre-symptomatic period was “clearly not the most infectious period but we do know that it happens”.[203] She also agreed in cross-examination that transmission required an element of proximity and a sufficient amount of live replicating virus.[204]

161.         At another point, the following series of questions and answers ensued during Dr. Henry’s cross-examination:

162.         Dr. McGeer commented that:

163.         Dr. Gardam agreed that: “there is a lead time of when you start to shed virus before you develop some symptoms”[207] but when asked if one produces large droplets when asymptomatic, replied:

164.         In their joint Reply Report Dr. Gardam and Dr. Lemieux disagreed strongly with Dr. McGeer’s assessment of the importance of asymptomatic transmission of influenza.  Relying upon a meta-analysis of human infection studies by Carrat et al[209], they opined that one could not say that asymptomatic transmission never occurs but that it was “unlikely to be of clinical significance”. They noted that: “the production of virus and the development of symptoms are closely linked together, and that the vast majority of the time patients have high viral levels, they are also symptomatic”. [210]

165.         Dr. Gardam expressed this view of the asymptomatic justification for VOM when giving evidence:

166.         He went on to say:

167.         In oral testimony Dr. Lemieux gave her opinion that:

168.         Dr. Lemieux also stated more succinctly:

169.         In cross-examination, ONA counsel reviewed the authorities relied upon by Dr. McGeer or Dr. Henry as the bases for their opinions on this issue together with some material not referenced by them: Loeb et al (2012)[215]; Suess et al (2011)[216] ; Freitas et al (2009)[217]; Esbenshade et al (2013)[218]; Wilde et al (1999)[219]; Elder et al (1996)[220]; Sheat (1992)[221]; Gu et al (2011)[222]; Carillo-Santisteve et al (2010)[223]; Lau et al (2010)[224]; Hermes et al (2011)[225]; Patrozou and Mermel (2009)[226].

170.         ONA also introduced a Letter to the Editor of the Canadian Medical Association Journal dated November 12, 2012 that was co-authored by Dr. Danuta Skowronski.  Dr. Skowronski is the medical lead for influenza and emerging respiratory infections who is part of Dr. Henry’s team at the British Columbia Centre for Disease Control.  Dr. Henry acknowledged that Dr. Skowronski had more experience with respect to vaccine effectiveness than herself.[227]   The letter, co-authored by Dr. De Serres, included the following observation: “The evidence that pre-symptomatic or asymptomatic infections contribute substantially to influenza transmission remains scant.”[228]

171.         The medical/scientific literature referred to or relied upon by the OHA/SAH on the asymptomatic question with witness commentary is set out in Appendix B.  Once again, these studies/investigations were undertaken in a wide variety of settings most of which had nothing to do with HCWs and some of which involved a very few people.  There were design limitations.  Some of them expressed serious doubt about, or found no evidence of, asymptomatic transmission.  The results were certainly not consistent. 

172.         The written submissions filed by the parties stake out polar opposite evaluations of the scientific evidence going to the key question of the use of masks to reduce the risk of transmission.  Those positions were remarkably unconditional in their characterization.

173.         The OHA and SAH submitted that:  “The scientific evidence in this case provides a solid and compelling foundation for the reasonableness of the Policy”.[229]

174.         It must be noted that the witnesses called by the proponents of these opposing submissions were more nuanced and did not support such unconditional characterizations. While conceding that “there’s quite a limited literature” on a key aspect of the issue[232], Dr. McGeer certainly did not concede that there was “no evidence in support of the mask policy”.

175.         Dr. McGeer explained that:

176.         Professor Brosseau agreed that there was qualitative evidence to support the conclusion that masks reduce the transmission of large droplets.[234]  She acknowledged the 2007 consensus finding of an Expert Panel of which both she and Dr. Gardam were members, that: “Surgical masks worn by an infected person may play a role in the prevention of influenza transmission by reducing the amount of infectious material that is expelled into the environment.”[235]

177.         Dr. McGeer and Dr. Henry presented the position of the OHA and the Hospital based upon their understanding of the relevant literature.  Neither of them asserted that they had particular expertise with respect to masks or had conducted studies testing masks.[236]

178.         On the subject of masks, after conceding that “I’m not a huge fan of the masking piece”[237], Dr. Henry ultimately concluded as follows:

179.         Dr. McGeer is of the view that “there is good evidence that wearing a mask limits the release of large droplets”[239] but was not as definitive as Dr. Henry about masks and proof of source control:

180.         In final argument the OHA/SAH counsel put it succinctly this way:  “It’s  [mask evidence] not as fulsome as all of the evidence about vaccination.  But to answer your question, there is some evidence, so they fall on their own sword saying no evidence.”[241]

181.         On the focused question of the utility of masks for the stated Policy purpose of source control and the protection of patients, Dr. McGeer stated in her Report filed pre-hearing that:

182.         In support of these opinions, Dr. McGeer cited the following articles:  Mansour and Smaldone (2013)[243]; Skaria and Smaldone (2014)[244]; Milton et al (2013)[245]; Johnson et al (2009)[246]; Canini et al (2010)[247]; Makison Booth et al (2013)[248]; Loeb et al (2009)[249]; MacIntyre et al (2011)[250]MacIntyre et al (2009)[251]; Cowling et al (2009)[252]; Simmerman et al (2011)[253]; Suess et al (2012)[254]; Larson et al (2010)[255]; Aiello et al (2010)[256]; Cowling et al (2010)[257]; bin-Reza et al (2012)[258]; Zhang et al (2009).[259]

183.         In responding to Dr. Brosseau in her pre-hearing Report she also cited the following additional references: Bridges et al (2003)[260]; McLure et al (2000)[261]; Bischoff et al (2007).[262]

184.         In her pre-hearing Report Dr. Henry responded to a request that she discuss the evidence that masks protect patients from influenza this way:

185.         In rendering this opinion Dr. Henry relied upon many of the same authorities cited by Dr. McGeer[264] and also:  Harnish et al (2013)[265].

186.         Witness commentary concerning the mask and related literature is set out in Appendix C.  It is fair to say, once again, that the findings of the authors vary considerably.  Some studies are admittedly irrelevant.  None of them present ‘best’ evidence.  At best, there appears to be limited evidence of what to a layperson may seem obvious:  a mask may prevent the transmission of large droplets.[266]  Two literature reviews refer specifically to “limited data”[267] and to “the limited evidence base supporting the efficacy and effectiveness of face masks to reduce influenza virus transmission”.[268]

187.         Citing a journal article[269] of which she was a co-author, Dr. Brosseau opined in her pre-hearing Report that:

188.         In cross-examination Dr. Brosseau agreed, having been referred to the Johnson[271] study, that: “there is in fact qualitative evidence in support of reduction of transmission of large droplets”.[272]  Her Reply Report however explained her opinion more fully:

189.         Dr. Brosseau had the following comments concerning mask performance generally:

190.         Dr. Brosseau described a so-called ‘grunge factor’.  It was her opinion[276] that many people would not be able to wear either a respirator or mask for a full 8 hours “due to buildup of heat and humidity inside the facepiece”:

191.         Dr. Brosseau’s testimony and original Report also referred to an academic study[278] to support her own experience although she acknowledged[279] that she “has no experience with long-term surgical mask wearing and could locate few data”:

192.         Dr. Lemieux was asked why she commented that very few people would want to wear a mask for 6 – 7 months and replied, referring to her own experience with masks:

193.         Ann Cook RN testified by will-say statement[282] alone.  She did not receive the influenza vaccination in 2014-2014 due to an allergy for which she provided medical documentation[283].  Her will-say included the following:

194.         Dr. McGeer expressed another opinion:

195.         Glenda Hubley acknowledged in cross-examination that she was “well aware that masks are worn by physicians, surgeons in the operating room, dentists, other healthcare workers in other parts of the hospital” and that she had never refused to work because she had to wear a mask in the operating room.[286] 

196.         Attached to Ms. Hubley’s will-say[287] was a copy of a “Seasonal Influenza Vaccination Disclosure Form” that included provision for “consent to the release of my influenza immunization status to my manager (or designate) for the purpose of outbreak planning and management”.  That provision is contained in the section to be completed by employees who have received their immunization at a location other than the SAH Occupational Health and Safety Service.  The same consent is required of employees who choose to decline influenza vaccination.  It is preceded by the following statement that employees are required to acknowledge: “I, ____ understand that SAH is committed to offering employees the seasonal influenza vaccination because research indicates that employees who are not immunized pose a serious health risk to patients, family and community during influenza season”.  An “Influenza Vaccination Consent” form is also in place for all employees, physicians, volunteers, students, and ‘other’ at SAH.  It includes the following:  “I consent to the release of my influenza immunization/antiviral prophylaxis status to my manager (or designate) for the purposes of overseeing the influenza management policy and outbreak planning.”[288]

197.         Ms. Manzo agreed in cross-examination that “the use of a sticker…would then identify whether or not I as a healthcare worker have taken the vaccine” and that such a sticker would be visible to all, managers, visitors, and patients.[289]

198.         Pam Poldmaa is a registered nurse who works at SAH in the Program for Assertive Community Treatment (“PACT”).  The Program involves adult clients with complex bio-psycho-social needs due to severe and persistent mental illness.   PACT nurses were instructed that the Policy made mandatory the wearing of procedure masks during all client contacts including in client homes, the nurse’s car, in the PACT office waiting room, and during all outings in public places in the community.

199.         Ms. Poldmaa testified about the negative impact of mask wearing upon the therapeutic nurse-patient relationship when dealing with paranoid suspicious people with a lot of fixed delusions.[290]  She also described a particular safety concern that had arisen; she removed her mask when concerned that a patient might hurt her.[291]  Ms. Poldmaa confirmed that she was subsequently advised that she was not required to wear a mask in public areas.  She also stated that she told her manager that: “I felt I was being publicly put on display for choosing not to get the flu shot.  I told her I felt I was being bullied into it and harassed.”[292]

200.         As previously noted, Ann Cook RN testified by way of will-say.[293]  She stated that her role, as ONTrac Patient Blood Management Coordinator, consists primarily of assessing patients’ health to determine readiness for surgery and providing health teaching about their blood transfusion options.  She said that oral communication was extremely important and that the majority of her clients are elderly and many have difficulty hearing.  She explained that she had experienced significant difficulty in effectively carrying out her nursing duties.

201.         ONA also filed an academic study that included the following conclusion:

202.         Ms. Cook also asserted that she:

203.         ONA also led evidence that it said supported the conclusion that the Policy was not consistently enforced.  Ms. Marcello testified that she had seen employees wearing masks dangling underneath their chins[296] and with masks modified with the bottoms cut off so that they do not fit securely[297] to the knowledge of supervisors[298].  She said that she has raised concerns regarding masks being worn improperly with several different supervisors.[299]  Mr. Johns did not take steps to see if the Policy was being complied with after hearing that evidence.[300]  Ms. Manzo acknowledged in cross-examination that she had observed incidents where masks weren’t being used properly.  The responsibility for enforcing the Policy rests with managers.  Audits have not been conducted nor auditors trained to monitor the use of masks.[301]

204.         In the 2014-2015 flu season there was a significant mismatch between the influenza vaccine and the dominant circulating virus in Canada, that is, A(H3N2).[302]  Dr. Henry described the mismatch as “probably the biggest difference between the vaccine strain and the circulating strain that we [have] had in a long time”.[303]  ONA submits that the basic failure of the vaccine in that year left virtually all HCWs equally exposed to the flu whether or not they had been vaccinated.  Therefore, the continued application of the VOM Policy only to unvaccinated HCWs made no sense.

205.         Dr. McGeer acknowledged that:

206.         For his part, Dr. De Serres testified that he advised the Ministry of Health in Quebec in the spring of 2014 that a “bad season”, “most likely” a H3N2 season that would severely hit elderly people was anticipated.  The components of the vaccine however had not been changed from the previous season.  In the result the vaccine did not protect against H3N2; that is, there was “no protection”.  The bulk of influenza in the 2014-2015 season was H3N2 in Canada.[305]  Dr. McGeer confirmed that: “what Dr. De Serres said was a surprise, was that that the degree of mismatch translated into our estimates in Canada of no protection”.[306]  Dr. Lemieux referred to a sentinel surveillance report that indicated a vaccine effectiveness rate of 12-14% for people aged 18 to over 50 [the presumed age range of most HCWs].[307]

207.         Dr. Henry agreed that, as early as November 2014, her colleague Dr. Skowronski had publicly indicated concern about a significant mismatch for the H3N2 strain, but stated that the vaccine also had the B strain and the H1N1 strain that were well matched.  She agreed that the H3N2 strain causes the most morbidity and mortality in older people.  She acknowledged that there was no change to the mask requirement in British Columbia nevertheless; that is, vaccinated as well as unvaccinated persons were not required to mask. She agreed that, against the dominating A(H3N2) virus, one nurse who had the vaccine would be no more protected than the nurse standing beside her who did not have the vaccine against that strain. [308]

208.         In addressing this mismatch season Dr. McGeer commented as follows:

209.         Dr. McGeer was asked the following question in cross-examination: “And at your hospital then, knowing that there was a significant mismatch, did you ask that all the employees wear masks, not just unvaccinated ones?”.  Her reply was: “We did not, no.”[310]

210.         ONA in evidence and in argument submitted repeatedly that the illogicality of the VOM policy was demonstrated by the failure of the Hospital to require the wearing of masks by everyone.  The Union submitted that the failure of the Hospital to alter the application of the Policy when the extent of the 2014-2015 vaccine mismatch became known made this point stronger still.[311]

211.         As early as July 11, 2013 the Chief of Staff at SAH is recorded as saying: 

212.         Dr. Gardam expressed his point of view succinctly:

213.         Dr. Gardam also commented on the mismatch year in this way referring to the Toronto Academic Health Science Network (“TAHSN”) implemented VOM policy:

214.         Dr. De Serres put it this way in his reply Report:

215.         Dr. De Serres said the following in his testimony after noting that vaccinated persons will shed virus if they get influenza.  He was asked in that context if a VOM policy made sense that did not require the masking of everyone and responded:

216.         Dr. Lemieux expressed the same opinion.[317]

217.         Dr. McGeer responded to the question of ‘why not mask all HCWs’ at some length:

218.         During her cross-examination[319] Dr. Henry acknowledged that:

219.         Dr. Henry answered the ‘why not mask everyone’ question this way:

220.         In final argument, referring to the mismatch year, the OHA/SAH counsel stressed that the mask is used as an alternative for those who choose not to vaccinate, that the Policy and its reasonableness can’t be based on one-year assessments, that it was not “even by midstream absolutely clear that the vaccine against one strain was not going to provide any protection”, and that “it’s also not clear when it’s providing protection against other strains”.[322]

221.         The OHA/SAH also looks to positions taken by other institutions and bodies to support its selection of a VOM policy.  I now turn to review some of them and others as well.

222.         By statute a medical officer of health has authority to settle requirements in an order “to decrease or eliminate the risk to health presented by the communicable disease”. [323]  What is noteworthy is what is missing. Neither mandatory influenza vaccination nor mask requirement orders have been made applicable for HCWs.  There is however a requirement for proof of measles vaccination as a condition of employment.[324]

223.         Subsection 6(1)(h) of the General Regulation under the Ambulance Act provides:

224.         At one time there was a specific requirement in Ontario that ambulance attendants have influenza vaccination, unless such vaccination was contra-indicated.  This is no longer the case. [326]

225.         The Ontario government has not designated influenza as a disease against which children must be vaccinated in order to attend school.[327]  Measles, mumps, tetanus and other diseases are designated.

226.         The College of Nurses (“CNO”) has not required that nurses secure influenza vaccination as a professional standard to be met nor have other provincial bodies with regulatory powers over healthcare professionals.  The CNO ‘Practice Guideline Influenza Vaccinations’ (June 2009) states that: “The College does not establish the requirements for immunization of health care workers.  These requirements are established by individual workplaces and by legislation.”[328]

227.         Dr. Brosseau was a member of the Council of Canadian Academies Expert Panel on Influenza and Personal Protective Respiratory Equipment.  The Panel conducted “An Assessment of the Evidence” in 2007.  Its consensus report included the following:

228.         A 2012 Position Paper issued by AMMI Canada [Association of Medical Microbiology and Infectious Diseases Canada], of which Dr. McGeer was a joint author, took the position that vaccination against influenza is ethically justified as a condition of employment.  The paper included no mention or discussion of the need for masking.[330]

229.         A 2013 prospective cohort study performed during the 2009 influenza A(H1N1) pandemic was aimed to determine whether adults working in acute care hospitals were at higher risk than other working adults for influenza and to assess risk factors for influenza among HCWs. Dr. McGeer was lead author.  There were no recommendations in the study of risk factors amongst healthcare workers that everyone be masked.[331].  Inter alia the study noted that:

230.         A third edition of “Best Practices for Infection Prevention and Control Programs in Ontario” was published in May 2012 by the Provincial Infectious Diseases Advisory Committee (“PIDAC”) of the Ontario Agency for Health Protection and Promotion.[334]  There is no recommendation for a VOM policy among the numerous recommendations found in this document although PIDAC recommends annual influenza vaccination as a condition of continued employment in, or appointment to, health care organizations.[335]

231.         A document, Annex F, “Prevention and Control of Influenza during a Pandemic for All Healthcare Settings”[336], produced by a working group of which Dr. Henry was a member[337], was produced for the Public Health Agency of Canada.  This set of recommendations related to protection in a pandemic when the entire population is naïve to a newly circulating strain of influenza, meaning that everyone would be in the same situation as unvaccinated people in the context of seasonal influenza.[338]  Dr. Henry agreed that this document did not recommend personal protective equipment for HCWs unless they were within two metres of a symptomatic person, permitted asymptomatic visitors without restrictions, indicated that asymptomatic personnel could safely work, and explicitly indicated that masks were not required for asymptomatic persons who had been exposed to infected roommates.[339]  There were no recommendations for the use of masks outside of an outbreak situation.

232.         A 2009 publication by the CDC (Centers for Disease Control and Prevention), “Interim Guidance for the Use of Masks to Control Influenza Transmission”[340] stated that: “no studies have definitively shown that mask use by either infectious patients or health-care personnel prevents influenza transmission” but recommended that “a surgical or procedure mask should be worn by health-care personnel who are in close contact( i.e. within 3 feet) with a patient who has symptoms of a respiratory infection, particularly if fever is present, as recommended for standard and droplet precautions”.

233.         On February 24, 2014, the TAHSN Healthcare Worker Influenza Immunization Working Group released a Report that included recommendations and extensive commentary concerning vaccination and VOM policies.[341]

234.         The TAHSN Report describes VOM policies as offering HCWs a choice between obtaining annual influenza vaccine and wearing a mask, a choice said to provide workers with more autonomy with respect to the management of influenza in their practices than would a vaccination-required policy[342]. It states that VOM policies “have been associated with reductions in the number of institutional outbreaks”[343]. It asserts that VOM policies “articulate conditions of employment very similar to those already in place for Diptheria, Tetanus, Pertussis, MMR, Varicella, and Hepatitis B”.[344]

235.         On the other hand, the TAHSN Report acknowledges a number of other issues including:

236.         The Report went on to canvass what it described as Ethical Considerations in Operationalizing an Influenza Vaccination of HCWs Program.  These included the following:

237.         The Summary paragraphs on the VOM section of the Report included the following:

238.         The Report went on at some length to consider what it termed Human Resources, Labour Relations and Legal Considerations and commented upon the Diebolt Award.  The Report concluded that:

239.         The TAHSN Report contains numerous footnoted references that are said to support the propositions advanced.  However, no references are cited concerning the use of a mask to reduce the risk of transmission of influenza to patients or that the introduction of VOM policies has been associated with reductions in the number of institutional influenza outbreaks. Nor does the Report note that influenza is not designated by Regulation for mandatory immunization unlike the other diseases referenced and said to be comparables.

240.         In their joint Report dated December 5, 2014, Dr. Gardam and Dr. Lemieux had the following exceptionally blunt comments about the TAHSN process:

241.         Dr. Gardam also spoke about his concerns when he gave oral testimony. [350]  In re-examination he explained:

242.         Dr. Gardam referred to his own hospital, UHN:

243.         The following outline of the parties’ very lengthy submissions[353] is necessarily very sharply abbreviated.  It does not include most of the numerous authorities that were cited in their complementary written arguments.[354]

244.         The Union submits that the Hospital has failed to meet its evidentiary burden to establish that the Policy is rationally connected to a legitimate purpose.  It called no mask expert.  The Policy does not meet accepted KVP requirements in that:

245.         ONA argues that:

246.         The Union refers to Irving and relies upon Peace Country Health[355] submitting that it provides the appropriate analytical framework for applying KVP where an employee’s right to privacy and personal autonomy is involved.  It suggests that an employer’s valid business objectives and good intentions are insufficient justification to intrude upon employees’ medical privacy:  Federated Cooperatives Ltd.[356] An employer must provide sufficient objective evidence to establish a link between the policy and the employer’s justification for the policy: for example, see: West Lincoln Memorial Hospital [357]; Casino Niagara[358].

247.         ONA points as well to Meiorin[359] in support of its submission that it is not sufficient for an employer to claim a safety interest to support a workplace policy or practice.  The Union submits that, although fitness tests for firefighters had a valid purpose in promoting safety, it was held that the research upon which the tests were based was incomplete, “impressionistic” and did not take into account human rights issues in establishing the required standard.  The policy was struck down.

248.         ONA refers to several leading authorities with respect to employee privacy rights:  Monarch Fine Foods Co. Ltd.[360]; Alberta (Information and Privacy Commissioner)[361]; St. Joseph’s Health Centre[362].  It also points to the provisions of a number of statutes: Personal Health Information Protection Act, 2004[363] (“PHIPA”); Freedom of Information and Protection of Privacy Act, s. 2[364] (“FIPPA”); Occupational Health and Safety Act, ss. 28(3), 63(2)[365]; Health Care Consent Act, s, 2, 10, 11[366].  As stated, the Union’s theory concerning these issues is grounded on the submission that the medical vaccination status of employees is publically communicated both by the very fact of mask wearing and by the sticker on the badges they must wear.  A Hospital posting advises patients and visitors of the VOM Policy and makes this clear.  The argument is that a VOM policy that imposes consequences upon a refusal to vaccinate amounts, in effect, to coerced consent.  Coerced consent is not proper consent.

249.         The Union also submits that Dr. McGeer’s evidence should be regarded as compromised given that she is “a fervent advocate for influenza vaccination”[367].  Dr. Henry was instrumental in the introduction of the VOM policy in British Columbia.[368]  It argues that an adverse inference should be drawn against the Hospital given that the following potential witnesses were not called:  Joanne Messier-Mann, Chief Nursing Executive; Dr. Heather O’Brien, Chief of Staff; Dr. Kim Barker, Medical Officer of Health, Algoma; Kim Lemay, Director of Human Resources; Jack Willet, Manager and Influenza Planning Committee member.[369]

250.         The OHA and the Hospital submit that the Policy relates to an important patient safety issue.  They argue that the Diebolt Award is indistinguishable, good law, and should be followed.  Arbitrator Diebolt has already determined that VOM policies meet the KVP test for reasonableness.

251.         Insofar as KVP and Irving are concerned the OHA/SAH submit that the Policy meets accepted tests for reasonableness and that it appropriately balances the Hospital’s interest with employee privacy interests.  As previously found by Arbitrator Diebolt, influenza can be a serious, even fatal, disease and masking has a patient safety purpose.  They submit that:  “the scientific evidence in this case provides a solid and compelling foundation for the reasonableness of the Policy”.[370] The ONA Central Collective Agreement recognizes a joint obligation to protect patient and employee health and safety.   Implementation of the Policy was the exercise of a legitimate management right codified in the Local Collective Agreement. 

252.         Reasonableness should be assessed using the Dunsmuir approach for judicial review.  Placing particular reliance upon comments by Arbitrator Hope quoted in Canada Safeway Ltd.[371], the OHA/SAH submit that: “the Arbitrator’s focus is to determine whether the Policy falls within a range of acceptable and rational solutions; it is not to assess whether the same policy would have been implemented by ONA”.[372] The statutory framework also supports the conclusion that steps should be taken to eliminate “undue risks” and “minimize hazards inherent in the hospital environment”.[373]

253.         There is no evidence to provide a factual foundation for the allegation that there was no informed consent to vaccination, let alone to disclosure of immunization status.  There are exclusion provisions in both PHIPA[374] and FIPPA[375] that preclude operation of those statutes. As a matter of fact, the sticker identifier shows only the SAH logo and the fiscal year and provides no information about immunization status.[376]  Managers were given only a list of vaccinated employees who had consented to release of personal health information.[377]  There is no evidence that informed consent was not given by any affected nurse.

254.         The relevant legal principles governing the admissibility of expert opinion evidence were well stated by the OHA/SAH[378] and are not disputed.  The expert evidence adduced in this case was central to both positions.  It would have been impossible to try the case properly without it.  Each side however questions the weight that should be accorded the evidence provided by the other’s experts. 

255.         The OHA/SAH suggest that the manner in which ONA secured its expert evidence was problematic.[379]  It also challenges Dr. Brosseau’s expertise if it is said to relate to the use of a mask to reduce influenza transmission from a HCW to a patient in an acute care hospital.  It says that Dr. De Serres, Dr. Gardam, and Dr. Lemieux purported to opine on the very issue in this proceeding: whether the Policy is reasonable.  Their description of the Policy as coercive and punitive constitutes the expression of personal views that mark their evidence as not “totally objective”.  Dr. De Serres has acknowledged that he has no expertise with respect to the use of a procedure/surgical mask.  Dr. Gardam has not engaged in scientific research regarding the use of a mask in the prevention of HCW influenza transmission nor has Dr. Lemieux.  Dr. Lemieux is tendered both as a fact and expert witness that the OHA/SAH also says is problematic.[380]

256.         ONA notes that the OHA/SAH called no mask expert evidence at all.  Dr. McGeer is a known advocate of mandatory influenza immunization and Dr. Henry was instrumental in the introduction of the VOM policy into British Columbia.  Their objectivity is suspect.  ONA says that: “Dr. McGeer has a history of making inflammatory and hyperbolic statements about the dangers of influenza and the risk caused by unvaccinated HCWs, specifically accusing them of having a ‘license to kill’”. [381]

257.         I am satisfied that the evidence of all of these witnesses should be accepted as proper expert opinion evidence, albeit recognizing some inevitable limitations and ignoring some of the comments that might be seen as conclusory having regard to the issues in this case.  The OHA/SAH raised concerns about “counsel-prepared” will-says and other objections at preliminary stages but I am satisfied that there has been adequate compliance with the requirements of Moore v. Getahun 2015 ONCA 55, a judgment that issued subsequently to the preparation of this material.  I also accept that ONA counsel faced practical difficulties when seeking the assistance of local expert witnesses that explains how their relationship unfolded.  Dr. Gardam explained at some length why it was necessary that he testify under subpoena.[382]

258.          The only witness for whom specialized mask expertise is claimed is Dr. Brosseau.  I accept that the focus of her research has been industrial hygiene with focus on fit and filter, principally concerning respirators.  I do not rely upon her opinion, to the extent that it was specifically expressed without corroboration, about the transmission of influenza from a HCW to a patient.  I accept that she is as competent, and likely more competent, than the other experts to speak to such mask literature as exists. 

259.         I have no doubt about Dr. De Serres’s expertise as a leading Canadian epidemiologist nor about that of Dr. McGeer.  They have both conducted extensive research concerning influenza and related subjects. Dr. Henry, Dr. Gardam, and Dr. Lemieux are all actively engaged in the infectious diseases field and have major responsibilities in major health care institutions.  They bring years of practical experience concerning influenza and other respiratory diseases and demonstrated deep knowledge of the currently available research and literature.[383] They collectively provided assistance in understanding the relevant research and literature in the only practical way possible; that is, by providing their informed opinions and by explaining the conclusions identified in their respective Reports by reference to that scientific material.  The curricula vitae of these experts are truly remarkable.

260.         As previously noted much earlier in this Award, Arbitrator Diebolt was also favoured with expert testimony.  However, given the parallel expertise of Dr. De Serres, Dr. Gardam, and Dr. Lemieux, I am not able to reach the same conclusion as he did that the evidence of Dr. McGeer and Dr. Henry on transmission issues should be preferred as having what he called  “special relevance”.[384]

261.         As noted at the outset of this Award, these grievances raise the issue of a labour arbitrator’s engagement with expert evidence when assessing the reasonableness of workplace policies that establish terms and conditions of work for employees who are delivering patient care.  The OHA/SAH, relying on Dunsmuir and other judicial review authorities, submit that some form of Dunsmuir-like deference should apply in assessing the expert evidence tendered in support of the VOM policy.

262.         I disagree.  Dunsmuir principles of deference should not be imported into first level rights adjudication.  The analogy to Dunsmuir is misplaced.  The nature and degree of that misplacement can be examined through the three concepts of deference, expertise, and reasonableness.

263.         First, the OHA/SAH’s position conflates decision-making deference with the question of what weight should be attached to an expert’s evidence.  These are very different projects.

264.         The concept of and rationale for deference that apply in administrative law have no application to and are not transferrable to understanding an adjudicator’s engagement with expert opinion evidence.  In administrative law, the notion of deference is integral to the very rationale for creating a rights-enforcement system composed of expert tribunals supervised by courts on judicial review.  While administrative tribunals have particular contextual, subject matter, and/or technical expertise, what is crucial is that those tribunals and the supervising courts are both legal decision-makers that are engaged in the same singular project of rights adjudication within a given legislative framework.  There, the concept of deference is grounded in principles of adjudicative economy and efficiency that recognize the rationale for creating expert tribunals while ensuring compliance with the constitutional requirement for judicial oversight.  And in that context, deference is applied with considerable nuance and contextual sensitivity as the vast and subtle jurisprudence of administrative law well demonstrates.

265.         The OHA/SAH’s adoption of the notion of deference wrongly suggests that a labour arbitrator should defer to the choices or conclusions that a witness makes within their particular realm of expertise.  The analogy is flawed because arbitrators and witnesses have different realms of expertise and are engaged in distinct ‘decision-making’ projects.  A witness may make choices and reach conclusions within their area of expertise but the parameters, expertise and duties that inform those choices are different from the parameters, expertise and duties that are engaged by a legal claim that arbitrators must resolve in the course of rights adjudication.  It is not a question of one decision maker (arbitrators) deferring to another (expert witnesses) because their mandates are completely distinct.  To exercise that form of deference would be an abdication of a labour arbitrator’s mandate and obligation to the parties.

266.         Instead, it is better to understand the arbitrator’s orientation towards expert evidence by remembering why expert opinion evidence is admissible as an exception to the exclusionary rule against opinion evidence and what role it plays in adjudication.  Expert witnesses are permitted to provide opinion evidence because their specialized knowledge may be required to assist the adjudicator to reach true inferences from facts stated by witnesses. 

267.         Since its 1994 ruling in R. v. Mohan, and most recently in White Burgess Langille Inman, the Supreme Court of Canada has cautioned against the danger that in the face of expert evidence “the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluate it”. [385] Instead, the Court has reiterated that “[t]he trier of fact must be able to use its ‘informed judgment’, not simply decide on the basis of an ‘act of faith’ in the expert’s opinion”. [386]  In all cases, the role of the expert witness is to provide “fair, objective and non-partisan opinion evidence” that assists adjudicators in assessing all the evidence before them and drawing true inferences.[387]

268.         But, the expert witness is not to substitute for the adjudicator’s independent assessment of the legal issue to be decided.  Accordingly, rather than “deference”, the real questions are what weight should an arbitrator give to particular expert opinion evidence and does that expert opinion evidence assist in drawing inferences.  As set out above, the parties agreed that it is necessary to assess and choose between the conflicting scientific evidence.  That assessment and such choice are not questions of “deference” but an exercise of an arbitrator’s normal judgment with respect to the weight, relevance and credibility of competing evidence.

269.         Secondly, the OHA/SAH’s adoption of the reasonableness test from Dunsmuir again risks confusing the question of deference and the limited scope of the expert witness’ expertise and risks diluting the well-established KVP test.

270.         The OHA/SAH’s position suggests that as long as the VOM Policy is based on “some” expert evidence and “falls within a range of possible, acceptable outcomes” it will be compliant with a reasonable exercise of management rights.  However, the articulation of what is “reasonable” in Dunsmuir is not a free-floating “reasonableness” test.  It specifically describes what degree of deference is appropriate when taking into account the distinct roles played by an administrative tribunal of first instance and a reviewing court within a vertical process of rights adjudication and review.  Also, the question of whether an expert witness’ opinion is “reasonable” equally presents the wrong frame.  It must be stressed that an expert witness’ expertise has a different focus and is incomplete for the purposes of determining the legal rights at issue in a grievance.  For example, an expert witness’ opinion may be “reasonable” in a colloquial sense in view of the parameters that inform the specific scientific project to which the expertise relates.  But this does not translate into a legal conclusion of reasonableness. It is important to use these terms with precision and to be very clear about the point in the decision-making process to which they relate.

271.         At the end of the day, the well-established KVP test that identifies what is a reasonable exercise of management rights is the legal test that applies.  As the Supreme Court of Canada stated in Irving, assessing what is reasonable requires a particular balancing of interests that is attuned to the labour relations context:

272.         ONA and the OHA/SAH both present Irving’s explication of KVP reasonableness, just cited, as providing the appropriate foundation for the analysis that is required. [389]

273.         Arbitrator Diebolt provided the following succinct descriptions that I readily adopt:

274.         Arbitrators have also made clear, as the OHA/SAH submits[392], that the test for reasonableness is an objective one and does not depend upon the subjective views of the employer, the union or any employee or group of employees.[393]

275.         As did Arbitrator Diebolt, I turn now to KVP where it was said that a unilateral employer rule must satisfy the following requisites:

276.         In the instant case, requirements #3 and #4 have been clearly met and #5 is not relevant.  As far as #6 is concerned, I am satisfied that the limited evidence led alleging inconsistent enforcement is not nearly sufficient to support a finding of breach given the size of this Hospital and bargaining unit. I propose therefore to say no more about it.

277.         The primary dispute between the parties concerned the reasonableness of the Policy.  The Union raised challenges on a variety of grounds each of which will be addressed with abbreviated reference to the evidence adduced.

278.         Before doing so, I identify certain non-controversial propositions disclosed in the evidence.  No one doubts the obligation of the Hospital to take all reasonable precautions to protect the health and safety of patients. No one doubts that influenza is a serious disease that may lead to serious, even fatal, consequences for certain otherwise compromised patients. With varying levels of assent given the developing science, none of the experts appear to question the first sentence of the published Policy: “Influenza immunization is the single most effective way of preventing the spread and acquisition of influenza.”[395]  All of the experts accept that, depending upon the number of years considered, the overall vaccine effectiveness rate is about 60%; they agree that many vaccinated HCWs will also contract influenza albeit in attenuated form in some cases. They agree that the 2014-2015 influenza season was an exceptionally poor year for vaccine match with the strain of the disease then prevailing in Canada.  The parties agree that the validity of a general VOM policy should not stand or fall on the basis of the experience of a single year.

279.          As set out above, ONA asserts that the improper purpose of the Policy is to promote an increase in influenza immunization rates without an independent patient safety offset that would otherwise justify a mask-wearing requirement.  To be clear, the Union does not contest the legitimacy of efforts properly made to encourage voluntary acceptance of vaccination by HCWs. Further, these grievances do not address outbreak situations specifically addressed by the Collective Agreement.

280.         On the issue of driving an increase in vaccination rates, Arbitrator Diebolt had the following to say:

281.         I will come to the final part of Arbitrator Diebolt’s second paragraph in due course but turn first to his first three sentences identified in bold.

282.         The genesis of the VOM Policy at SAH cannot seriously be doubted on a documentary record that is extensive, detailed and supported by the uncontradicted oral evidence of several witnesses. 

283.         I credit without hesitation the statement in Mr. Gagnon’s will-say that earlier “critical incidents have shaped his beliefs and actions, and those of SAH with regard to safety”[397].   His will-say was compelling.  However, I also find that Mr. Gagnon had decided, by as early as January 2013, that a VOM policy would be introduced at SAH.  Only VOM detail and a date for implementation remained.  The bedrock VOM requirement had been determined.  Notwithstanding questions raised at various times by the Chief of Staff, the Chief Nursing Executive, and the Algoma Medical Officer of Health, VOM was pursued without waver until the Policy was made effective on January 1, 2014. UHN experts retained “to provide expert advice to Infection Prevention and Control at SAH on specific infection control issues” were not consulted.

284.         On the face of the record, I have little to no doubt that the dominant, likely sole, motivation for the introduction of the Policy at SAH was to drive up immunization rates.  The concern was the risk to patient safety of influenza transmission.  The response to that concern was to take all possible steps to increase vaccination rates at the Hospital.  VOM was adopted as the vehicle to achieve that objective.  What little doubt I have about this conclusion is allayed by what happened at the Hospital in the Fall of 2013.  The record is plain that Mr. Gagnon determined that the Policy would be introduced if the target 70% immunization rate had not been reached by December 31, 2013.  He also announced that the Policy would continue in 2014-2015 if an 80% target were not met by the end of March 2014.  What is equally noteworthy is what is missing from the record.  There is no discussion of any kind about the positive efficacy of masks throughout 2013 on the detailed record of events at SAH.

285.         The motivation for VOM at SAH is entirely consistent with what has been acknowledged elsewhere.  In her Report Dr. McGeer states that larger and more complex organizations have difficulty in achieving and sustaining superior rates of vaccination and that: “Programs which require that healthcare workers who choose not to be (or cannot be) vaccinated wear a mask when in patient care areas during the influenza season are associated with increases in vaccination rates.”[398]  In the TAHSN Report, the recommendation is to use voluntary programs as a “preferred first approach” and “if ineffective, policy could move along to [the] stage of vaccinate-or-mask...”.[399]  The TAHSN Report goes on to say: “When HCW immunization rates remain low in spite of state-of-the-art educational and incentive programs, a vaccinate-or-mask approach would be ethically defensible.”[400]

286.         The OHA/SAH accept at least the general tenor of this description.  It is conceded that low influenza vaccination rates were the backdrop that “animated the implementation of the Policy at SAH”[401].  In final argument counsel, while disputing the relevance of the 70% vaccination rate for purposes of assessing reasonableness, stated that the Policy:

287.         However, Dr. McGeer and Dr. Henry defended VOM policies on another basis.  As previously stated, they assert that the primary purpose of VOM policies is to prevent transmission from unvaccinated HCWs to their patients prior to symptom onset, or, in cases of asymptomatic infection. 

288.         Review of this stated purpose requires an assessment of the evidence said to support it, to which I now turn.  I have endeavoured earlier in this Award and in the Appendices to set out a summary of that evidence at least in outline form; there is no point in repetition.

289.         There was vigorous disagreement about the scientific merit, and relevance to acute care hospitals, of the findings of several RCTs conducted in long term care facilities. These RCTs are said to confirm that influenza vaccination of HCWs will produce substantial all-cause mortality reduction.  Dr. McGeer and Dr. Henry also rely upon several observational and experimental studies in other settings.  Dr. McGeer maintains that: “since an infected healthcare worker can transmit influenza to persons he or she comes into contact with, it must be true that preventing influenza in patient care staff reduces the risk that they will transmit influenza to patients”.[403]

290.         While the latter statement seems axiomatic, Dr. McGeer and Dr. Henry concede that there are differences between the very enclosed setting of long-term care and ambulatory or hospital care.  These differences alter the balance of what is at risk from a HCW as opposed to from other people.[404]  While the OHA/SAH experts opine that these observational and experimental studies provide support for the RCT findings, they appear to me in some cases to be quite remote and of extremely limited assistance.  Other experts in the field have challenged their relevance and judged some of them harshly.

291.         The RCTs have also been the object of detailed criticism from other reviewers and investigators as earlier related. Dr. McGeer and Dr. De Serres, to say the least, engaged in vigorous debate as to the merit and relevance of these RCTs.  I do not propose to describe, let alone make any finding concerning the quite arcane aspects of their disagreement about Dr. De Serres’ calculations as to the suggested numbers needed to vaccinate in order to prevent one death in Canadian acute care facilities, his application of the epidemiological dilution principle, and his explanation of why he supports the Cochrane Review’s[405] highly critical assessment of the RCTs. I accept Dr. McGeer’s observation that determining the proportion of hospital acquired influenza that is associated with HCWs is an extraordinarily difficult challenge given the complexity and communicability of influenza. 

292.         However, broad controversy concerning the merit of the subject RCTs arose in the scientific community well before the commencement of this litigation and has not dissipated since the release of the Diebolt Award notwithstanding the Ahmed review.  Indeed the experts have continued to debate Ahmed itself.  

293.         On the evidence heard in this proceeding, I am not able to conclude that Dr. McGeer’s opinion--that the specific burden of influenza caused by transmission from HCWs is no longer relevant given the RCT findings--should necessarily prevail to the extent that that issue is important to the outcome of this arbitration.

294.         The experts do not agree about this issue either although they do agree that the scientific evidence in support of the claim, that asymptomatic transmission is important, is limited.  Dr. McGeer concedes that: “the truth is we simply do not know much about transmission risk at a population level”.[406]  Dr. Henry states that there is “some evidence that people shed prior to being symptomatic and some evidence of transmission” but “there is not a lot of evidence around these pieces”. [407] Dr. De Serres says that there is “scant evidence”. [408] Dr. Skowronski, whose expertise is acknowledged by Dr. Henry who is her colleague, co-authored a letter to the Canadian Medical Association Journal stating that: “The evidence that pre-symptomatic or asymptomatic infections contribute substantially to influenza transmission remains scant.”[409]

295.         The experts also commented upon the degree of risk attendant upon pre-symptomatic or asymptomatic virus shedding.  Dr. Henry and Dr. McGeer concede that symptomatic patients will shed more particles but Dr. McGeer speculates that individual heterogeneity may mean that some asymptomatic high viral shedders are very important in transmission.  On the other hand, Dr. De Serres, Dr. Gardam, and Dr. Lemieux all point to the Carrat meta-analysis to support their opinion that asymptomatic transmission is unlikely to be of clinical significance.  Dr. Lemieux described the period of asymptomatic time to be a “very short window” of less than a day.  Dr. Gardam said that an asymptomatic individual does not produce a lot of large droplets.

296.         The several authorities relied upon by the OHA/SAH experts for their opinions on this subject, or to which they were referred, are identified previously in this Award.  It is apparent that some of these studies were not about asymptomatic infection or were not cited in support of the proposition that influenza can lead to asymptomatic infection.  Others concluded that viral shedding without apparent symptoms was infrequent.  There were household studies and others involving a very small number of people.

297.         Based upon my review of this material noted above and canvassed in more detail in Appendix B, and bearing in mind the concessions made about the quality of this evidence by Dr. McGeer and Dr. Henry, it appears to me that conclusions stated in the Patrozou review remain accurate:

298.         The experts also agree that there is limited evidence on the significant point of the utility of masks in reducing transmission risk.

299.           Although she referred to “good evidence” in her Report, Dr. McGeer gave oral testimony that: “It’s not great evidence…it’s hard to put a number on it, but you can’t walk away from this saying there is no evidence that wearing a mask prevents you from influenza”.  She also said: “So the truth of the matter is that none of us are really experts in source control.  There’s quite a limited literature.” [411]

300.         Dr. Henry is “not a huge fan of the masking piece” and agreed that: “there’s very scant evidence about the value of masks in preventing the transmission of influenza”.  It is her view however that, although the evidence is “not conclusive”, “if healthcare workers are unvaccinated, wearing masks almost certainly provides some degree of protection to their patients”.[412]

301.         Dr. Brosseau observed that “there are a very small number of studies examining the efficacy of surgical or medical masks for protecting patients from infection” although she conceded in cross-examination that “there is in fact qualitative evidence in support of reduction of transmission of large droplets”, that she describes as a “very low probability event”.  She said that in her experience the masks used at SAH[413] would very likely not have very good filter performance or efficiency.[414]

302.         The literature relied upon by Dr. McGeer and Dr. Henry, and the comments of the various experts thereon, have also been previously identified and are referenced in Appendix C. There is no point in repeating what has earlier been recorded about the testimony they gave. I conclude that the most that could be said is that there is agreement that a mask is likely to prevent the transmission of large droplets at close range.  I accept on the evidence of all of the experts, as did Arbitrator Diebolt[415], that masking will act as a barrier and provide some patient protection when an infected person, coughing or sneezing, transmits large droplets to another person.  Having said that, sick HCWs are not supposed to be at work although, of course, we know that this occurs.[416]  I accept that the real life prospect of infected HCWs sneezing or coughing close to, or directly into, the face of patients is slim not to say that it could never occur.

303.         Having considered that material and the witness commentary, I conclude as did the authors of the bin-Reza systematic review:

304.         Once again, the evidence on the impact on HCWs of long-term mask wearing has been previously reviewed above.

305.         While I accept Dr. McGeer’s explanation that surgical/procedure masks are worn routinely in hospitals in a variety of circumstances, the direct evidence particularly of RN Cook, that masks are unpleasant if worn for extended periods, persuades me. Her evidence, supported by the personal experiences of Dr. Lemieux and Dr. Gardam, seems to me to be irrefutable.  It has a clear ring of practical truth.

306.         Insofar as ONA’s evidence concerning the difficulty of performing some nursing duties while wearing masks is concerned, I agree with the approach taken by Arbitrator Diebolt.  If the Policy were sustained, I accept that such difficulties could and would be accommodated.  If they were not, such issues could be made the subject of separate focused grievances.  I do not believe that the general validity of the Policy should be tested by exceptional situations.

307.         As previously explained, ONA submits that the illogicality of the VOM Policy at SAH is disclosed by the absence of a requirement to mask everyone.  The Union does not of course agree that the Policy would be acceptable should the Hospital have done so. 

308.         Dr. De Serres, Dr. Gardam, and Dr. Lemieux provided sharp commentary on this issue in their pre-hearing material and in their testimony.  It is argued that, with a vaccine efficacy rate of 60% on average, there are many vaccinated HCWs who stand in the same shoes as their unvaccinated colleagues insofar as risk of influenza is concerned.  In a mismatch year, the number of equivalently situated persons only rises, potentially to the 2014-2015 extreme outcome. If hospital authorities were convinced about the utility of masks for the purpose alleged, why not mask everyone?

309.         Dr. Henry and Dr. McGeer were asked this question and, with respect, I found their answers, set out in full above[418], to be less than convincing.  Their more terse comments however seemed right to me. Dr. McGeer said: “The masking alternative [to vaccination] is honestly a somewhat desperate attempt to find the solution to the problem that we want to respect health care workers’ choices about vaccination.”  Dr. Henry stated: “It’s a challenging issue and we’ve wrestled with it.  I’m not a huge fan of the masking piece.  I think it was felt to be a reasonable alternative where there was a need to do—to feel that we were doing the best we can to try and reduce risk.”  Neither explained to my satisfaction, or to my understanding, why masking should not be required generally if the risk of HCW transmission is as serious as they maintain and if masks actually serve as an effective intervention.  In my view their explanations do not adequately answer the contrary point of view expressed by Dr. Gardam, Dr. Lemieux, and Dr. De Serres.[419]

310.         For the same reason, ONA also raises the issue of why the Policy does not apply to visitors and to HCW/patient interaction in other areas of the Hospital, for example, cafeterias.

311.         Having considered all of the evidence led in this proceeding to the best of my ability, I reach a different conclusion than did Arbitrator Diebolt on the broad issue of reasonableness.

312.         In short, I am not satisfied that the patient safety purpose and effect of masking has been established as it was before Arbitrator Diebolt.  In that circumstance, I am left to conclude that the VOM requirement reduces to “coercive tool”, a situation that Arbitrator Diebolt said “would be troubling” if made out.

313.         I find the Policy at SAH to be unreasonable for the following reasons.

314.          The VOM Policy was introduced at SAH for the purpose of driving up immunization rates.  The Hospital pursued a VOM policy despite concerns raised by senior medical staff including the Chief of Staff and the Chief Nursing Executive.  The Hospital failed to consult with infectious prevention and control experts on retainer.  CEO Gagnon announced that the Policy would be implemented should an immunization rate of 70% not be achieved.  There is no evidence of any medical or scientific rationale for such a condition or for the 70% target rate selected.

315.         In short, the laudable goal of preventing hospital-acquired influenza by enhancing vaccination rates was advanced by adoption of a VOM policy, what I see as a colourable means of accomplishing a legitimate objective. From the beginning masks were cast as a “consequence” for failure to vaccinate. [420]  They were not advanced at SAH as useful instruments for patient safety in and of themselves.

316.         Arbitrator Diebolt preferred the employers’ evidence before him on the question of whether the immunization of HCWs reduces transmission of the disease to patients.  He did so for four reasons: (i) the union experts overlooked a considerable body of evidence beyond the RCTs, (ii) laboratory and ethical issues pose a barrier to the conduct of RCTs in acute care facilities and, therefore, it is sensible to have regard to other forms of evidence, (iii) because an infected HCW can transmit influenza to others it must be true that preventing influenza in HCWs reduce the risk of transmission to patients, (iv) “given the areas of expertise of McGeer and Henry their evidence on the transmission issues have special relevance”.[421]

317.         For reasons previously provided, I am unable to prefer the quality of the expert opinion advanced by the OHA/SAH employer to that of ONA on the basis of comparative expertise concerning the key issues in dispute.  Fair recognition of the collective research and practical expertise of Dr. De Serres, Dr. Gardam, Dr. Lemieux, and Dr. Brosseau implies not the slightest disrespect to that of Dr. McGeer and Dr. Henry. 

318.         The testimony of the ONA experts supported the union expert evidence set out in some detail in the Diebolt Award.  What is extremely clear is that the evidence underpinning an assessment of the burden of disease caused by unvaccinated HCWs has come under heavy criticism from several reputable sources apart from the experts who appeared in this case. Arbitrator Diebolt found that union witnesses overlooked transmission evidence beyond RCTs.  The ONA experts did not overlook such evidence. In my opinion the extremely limited, not to say absolute lack of, assistance of such evidence was demonstrated.  While I do not find it necessary to delve into the intricacies of the debate on this issue and to choose between the proponents, I am not able to prefer the views of Dr. McGeer and Dr. Henry.

319.         The union position before Arbitrator Diebolt was that: “there is real doubt and little if any reliable evidence to show that silent shedders transmit influenza or that masking would inhibit such transmission.”[422]  After weighing the competing evidence before him, Arbitrator Diebolt concluded otherwise.  On what appears to be a greater depth of evidence review conducted in this proceeding, I take the opposite point of view.  In my opinion ONA has established, on its own evidence and through the admissions of the OHA/SAH experts in cross-examination, that there is scant scientific evidence concerning asymptomatic transmission, and, also, scant scientific evidence of the use of masks in reducing the transmission of influenza virus to patients.

320.         A question arose about what should follow if the evidence on masks was weak: ‘Is any evidence sufficient to sustain the policy or where is the line drawn?’[423]  To paraphrase the answer of the Hospital: ‘something has to be found if HCWs fail to vaccinate, some evidence of source control protection is sufficient’.  To quote directly:

321.         The word “some” of course is an adjective that may convey a wide range of meaning depending upon the context of its use.  “Some” might mean ‘very little’ or ‘quite a lot’.  I am not able to conclude that “some” evidence, evidence as scant as appeared here, is sufficient to bear the weight of a Policy such as this one.

322.         The assertion that a mask requirement serves a valuable or essential purpose, albeit that there is only “some” evidence, is also weakened by actual employer practice. If the mask evidence were as supportive as claimed, it would suggest that vaccinated HCWs should also wear masks given the limited efficacy of the vaccine even in relatively ‘good’ years. The SAH Chief of Medical Staff raised this question at the outset. The Hospital’s failure to consider re-evaluating the Policy’s application when the extent of the 2014-2015 vaccine mismatch became known raises the same issue. The OHA/SAH expert responses to these questions set out in full above[425] were short of satisfying.[426]

323.         Wearing a mask for an entire working shift, virtually everywhere, no matter the patient presenting circumstances, is most unpleasant.  While I readily accept that the wearing of a mask for good reason may reasonably be expected of HCWs, an Irving “balancing of interests” is required. The Policy makes a significant ‘ask’ of unvaccinated employees; that is to wear an unpleasant mask for up to six months at a time.  As noted, the evidence said to support the reason for the ‘ask’—evidence concerning asymptomatic transmission and mask effectiveness--may be described at best as “some” and more accurately as “scant”.  I conclude that many of the articles footnoted in support of the strong opinions set out in the OHA/SAH expert Reports provide very limited or no assistance to those views. The required balancing does not favour the Policy.

324.          There has been no showing as to why current Hospital policies are not adequate or could not be amended, if necessary to the extent necessary, to carry out the stated patient safety purpose of the Policy.  They already speak to precautions required where there may be transmission of droplets to another person within two metres. There were no influenza outbreaks at the new Hospital site prior to the introduction of the Policy.  Ironically, an outbreak, that occurred on three units after VOM implementation, affected 16 patients and staff of whom 75% had previously received influenza vaccination. The current Infection Control Manual that includes a mask component is said to apply to patients and staff although the focus is plainly upon patients with infection.[427]

325.         I have found that the Policy was instituted for the purpose of increasing vaccination rates to a target figure deemed acceptable by the Hospital and that there is insufficient evidence to support its introduction on any other basis.  In that circumstance, I conclude that the Union has established that the Policy is inconsistent with the collective agreement and therefore fails item #1 of the KVP test as well.  The Policy is not a reasonable rule as would otherwise be permissible pursuant to Article B-1 (e) of the ONA/SAH Local Agreement. 

326.         ONA and the OHA/SAH have negotiated a detailed influenza outbreak protocol that includes recognition of the benefit of influenza vaccine. It also, in Article 18.07, recognizes the right of nurses to refuse any required vaccination.  The imposition of a mask requirement, without sufficient justification relating to the use of masks, is tantamount to an impermissible penalty upon a nurse choosing to exercise that right.  In this regard, I note Dr. Henry’s recognition that the wearing of a mask could be reasonably regarded as a “consequence” for failure to consent to vaccination.[428]  The Policy is inconsistent with Article 18.07 (c) in that it operates to undermine the right of nurses to refuse any required vaccination.

327.         Rather than finding, as did Arbitrator Diebolt, that a VOM policy provides a legitimate “accommodative purpose for health care workers who conscientiously object to immunization” [429], I conclude that the Policy more closely resembles an unacceptable Hobson’s choice.  I am not persuaded by Dr. McGeer’s speculation that a VOM policy focuses employees’ attention and may encourage truly voluntary immunization, nor, am I convinced that the continuance of a minority employee group who choose to mask disproves the effectively coercive aspect of VOM.[430] I note the evidence of RN Poldmaa who told her manager that: “I felt I was being publicly put on display for choosing not to get the flu shot.  I told her I felt I was being bullied into it and harassed.”[431]

328.          I find little comfort in references to practices elsewhere.[432]  Dr. Gardam’s concerns about the TAHSN process and the recommendations of other bodies are concerning[433] although I do not depend upon his extremely critical recitation. What I find more noteworthy is that the provincial authorities have not taken steps in Ontario to designate influenza for mandatory HCW immunization or to require or recommend the consideration or implementation of some form of a province-wide VOM policy.  There is a clear statutory basis for the designation of diseases requiring vaccination.

329.         In view of my conclusion that the VOM Policy is unreasonable and contravenes KVP principles, it is not necessary that ONA objections to the Policy on the ground that it violates employee privacy rights be addressed. For reasons of completeness, if my conclusion concerning the Policy’s reasonableness is in error, I make the following brief comments.

330.         Assuming the validity of the Policy, and assuming the voluntariness of the employees’ consent, I would have reached the same conclusion as Arbitrator Diebolt on the narrower privacy issue, albeit under separate provincial legislation.

331.         In the face of these identified assumptions, I would have accepted the submission of the OHA/SAH that the information at issue would have been excluded from protection under the Personal Health Information and Privacy Act (“PHIPA”) by virtue of ss. 4(4) of that Act and would have been similarly excluded from protection by virtue of ss. 65(6) para. 3 of the Freedom of Information and Protection of Privacy Act (“FIPPA”).

332.         Subsection 4(4) of PHIPA excludes certain information from the application of the Act as follows:

333.         Subsection 65(6) para. 3 of FIPPA similarly excludes certain information from the Act’s ambit:

334.         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 ss. 4(4) of PHIPA.  The 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.

335.         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. 

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

337.         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. 

338.         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] 

339.         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. 

341.         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. 

342.         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.

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

344.         Dr. McGeer was a co-author.  She acknowledged that one of the results of the study was that: “We did not identify an increase in the risk of influenza among workers in acute care hospitals compared to office space workers during the 2009 pandemic”. [438] She agreed that there were no recommendations in this study of risk factors amongst healthcare workers that everybody be masked.[439]

345.         Referring to Kuster, Dr, Henry said: “There is one study that was done that finds a little bit of evidence that we as health care workers might be more at risk because of our contacts within the health care setting than people who aren’t health care workers”.[440]

346.         Dr. De Serres explained that the study demonstrated that: “obviously there was concern that people would be at much greater risk because of their exposure at work and, in fact, what was found in that paper that the most influential factor was acquiring influenza in your household, not at work.”[441]

347.         This prospective study concluded that: “results indicate that the risk of HA-ILI [hospital acquired influenza like illness] increased with the level of exposure to contagious patients and HCWs.  Preventive actions, including hygiene measures and vaccination, might reduce HA-ILI and influenza incidence during hospital stays.”[443]

348.         There was no mention of masks as a possible preventive action.

349.         Dr. McGeer commented:

350.         This observational study looked back at information to see if there was an increased risk of acquiring influenza depending on whether there were other people (HCWs or patients) on the ward with influenza.

351.         Dr. McGeer testified that the article demonstrated that: “patients on wards where more than 35 percent of workers were vaccinated were much less likely to develop hospital-acquired influenza than patients on floors where less than 35 percent were vaccinated”.[446]

352.         By way of comparison, it should be noted that the vaccination rate at SAH was well above 35% before implementation of the Policy. [447]

353.         This study involved a relatively closed Hutterite community.

354.         Dr. Henry agreed that the Hutterite community is “nothing like an acute care hospital like Sault Area Hospital”.[449]  She said that it was a “useful sort of test case…it’s more like a family unit, so it helps understand what can happen in transmission potentially in a closed setting”.[450]

355.         When it was suggested to Dr. McGeer that Osterhom and others had concerns about drawing conclusions from Hutterite studies, she replied:

356.         Dr. McGeer confirmed that the authors of this observational study said that they were unable to determine whether HCWS or visitors contributed to transmission.[453]

357.         Dr. McGeer agreed that this study did not deal with staff vaccination.  It was included in error.[455]

358.         Dr. McGeer confirmed that this article concerned a single outbreak and that the index patient had symptoms before the HCWs.  It was unknown as to whether any of the patients or HCWs had previously received vaccine.  The article is “not about the fact that healthcare workers start outbreaks, it is about the fact that when you have influenza outbreaks, both healthcare workers and patients develop illness”.[457]

359.         Dr. McGeer said that: “I’m not sure I would even call it a study.  This is a description of change over time in a hospital that introduced an influenza vaccination program for healthcare workers.”  It was not possible to determine which of the multiple interventions introduced effected any change. “You can only say that there is a temporal association between the increase in vaccination and the decrease in the percentage of hospital-acquired infections in patients.”[459]

360.         Dr. Van Buynder was involved with Dr. Henry in implementing the VOM policy in British Columbia.  The study concerned one health care unit and demonstrated that, following the policy, there had been an all-cause reduction in employee sick hours.  Dr. Henry acknowledged that the study had limitations. She agreed that it did not control for important cofounders such as health status or health behaviours such as smoking.[461]

361.         Dr. Henry explained that: “this was one of the first papers that came out that actually quantified the fact that influenza does happen in acute hospital settings”.  The question had been whether, compared to long-term care homes, there was a “need to monitor for influenza in acute care facilities where the patient population is much more transient…”[463]

362.         Dr. Henry explained that this study demonstrated that vaccination of both patients and HCWs was important in the reduction of transmission.[465]  It looked at influenza like illness and not specifically at influenza.[466]

363.         Dr. McGeer was a co-author of this study. Dr. Henry agreed that it demonstrated an effect of increased vaccination rates in facilities with fewer than 100 beds but not in those that had more.[468]

364.         This was a study involving school-based vaccination.  Dr. Henry stated that this study looked at ILIs and was not placebo-controlled.  The study acknowledged its limitations. She agreed that such programs are significantly different than hospital-based vaccination programs.[470]

365.         When it was suggested to Dr. McGeer that reliance on school-based evidence was problematic, she explained:

366.         Dr. Henry agreed that this observational study: “is not a very strong study in design…it’s just a piece of the evidence that’s out there that needs to be considered”.[473]  “It’s clearly not referring to a healthcare setting.”[474]

367.         Dr. McGeer said that: “they consider it circumstantial evidence that healthcare workers were involved in the outbreak but you can’t be sure that healthcare workers didn’t have, that the respiratory illness they had during the outbreak wasn’t due to something else, and the antibodies were due to illness at another time.[476]

368.         Dr. Henry described this article as: “one of those studies that help support that there is some asymptomatic shedding of virus that could be transmissible to other people”.[478]

369.         Dr. McGeer confirmed that this study was conducted in a closed Hutterite community, that the authors concluded that “viral shedding without apparent symptoms was infrequent, occurring in 10 per cent of episodes”, and that “the viral loads of asymptomatic participants were lower and of shorter duration than those who were symptomatic, suggesting that asymptomatic transmission may be less frequent and less efficient than symptomatic transmission”.  She agreed that this rate of asymptomatic infection was similar to that identified in the Lau study[479] at 14% but suggested that the authors would have “missed some episodes of asymptomatic infection” because to detect such infection “you have to do a lot of swabbing of people and that is both expensive and relatively unpleasant”. [480]

370.         Dr. Henry in chief described this as a household study conducted during a pandemic that illustrated that “people can release virus into the community that’s potentially transmissible to others even before they show symptoms themselves”.[482]

371.         Dr. McGeer confirmed that: “This study was not dealing with whether transmission occurred from asymptomatic people”.  She agreed that the authors identified as a limitation of the study that “most analysis of shedding characteristics were done among ILI patients which are likely not representative of all influenza patients” and that they could not measure the difference between viral shedding in asymptomatic and symptomatic people.[483]

372.         This was an outbreak report relating to a family.  The asymptomatic individual hugged, kissed and shared a bed with the persons who contracted influenza.  None of her co-workers were infected.

373.         Dr. Henry asserted that the report demonstrated that influenza could be transmitted prior to symptom onset[485] but acknowledged that this was a single situation and that none of the index case’s co-workers got sick.[486]  Dr. McGeer  agreed that this was an investigation and not a study and acknowledged that “there is a greater risk of transmission in households than between workers”.[487]

374.         Dr. Henry agreed in cross-examination that this article was not about asymptomatic infection leading to influenza and was included in her Report only “to show that healthcare workers do actually work while they’re infected”.[489]

375.         Dr. Henry confirmed that this study was included to demonstrate that “hospital employees report to work despite having febrile illness and that this supported their [the authors’] contention that efforts to vaccinate healthcare professionals were important”.[491]

376.         Dr Henry agreed in cross-examination that this study was not cited in support of the proposition that influenza can lead to asymptomatic infection.[493]

377.         This was an outbreak report arising from telephone interviews of 26 people who bagged fertilizer for a day while one was not feeling well.  16 of them had ILI afterward.  Many reported having shared drinking containers.

378.         Dr. McGeer said that this was “an illustration of a case in which there appeared to be transmission of influenza before the person recognized that they had an acute respiratory disease”.  She agreed that: “there is a dearth of data on transmission before the onset of infection because it’s so hard to study.  There’s—we all agree on that”.  She agreed that healthcare workers do not share bottles or water or liquids in containers with patients.[495]

379.         This investigation involved students who had played video games on a train sharing the controller.

380.         In Dr. McGeer’s opinion the authors “weren’t looking for asymptomatic transmission” but she accepted their conclusion that people in this outbreak “were transmitting disease before they were symptomatic”.  She agreed that the investigation concerned a total of eight people.[497]

381.         This outbreak investigation concerned a group of school children who went to the United Kingdom from Paris.  An effort was made to identify the source of an ILI infection that might have been either a teacher of a 10-year-old girl.  Dr. McGeer confirmed the conclusion of the authors that: “Further work is needed to better define conditions under which the pandemic virus may transmit in a school setting and in households”.[499]

382.         Dr. McGeer confirmed this report’s conclusion that: “Our results suggest that ‘silent spreaders’ (i.e. individuals who are infectious while asymptomatic or presymptomatic) may be less important in the spread of influenza epidemics than previously thought”.  She stated that their 14% figure was less than anticipated.[501]

383.         Dr. McGeer did not reference this study in her Report.  She agreed that the fact pattern resembled others that she had relied upon. However, she testified that the fact that the authors “did not find presymptomatic transmission…in a relatively small group of patients…it’s not important and useful information; it just doesn’t help you with whether presymptomatic or asymptomatic transmission is important at some level”. 

384.         She agreed that the findings of these authors: “was opposite of the one that you gave us.  There was no evidence of presymptomatic transmission.”[503]

385.         The published synopsis of this literature review stated that:

386.         Dr. McGeer noted that this review was written before the 2009 pandemic and that none of the later case studies (4) would have been included.[505]

387.         As previously noted, with an important qualification, Dr. Brosseau confirmed the opinion of Dr. McGeer[507] and Dr. Henry that the study provides “some limited qualitative evidence” that a mask may prevent the release of large droplets.  Dr. Henry testified that: “this study showed, in a small number of people, that both surgical masks and the respirator were good at trapping the droplets in, that they didn’t come through the mask when somebody coughed”.[508]

388.         Dr. Brosseau noted that the study involved individuals coughing directly into Petri dishes with and without a mask.  She stated that: “the Johnson study really gives you no data about the capture by a filter or a surgical mask of these smaller infectious particles”.[509]  She described the study this way:

389.         The Abstract for this study reads in part:

390.         Dr. Brosseau concluded that the Milton study demonstrated that surgical masks “offer little or no reduction in small infectious aerosols from the wearer”.[512]

391.         Dr. McGeer commented that a 3.4 fold reduction is:

392.         The witnesses confirmed[515] that this study was conducted with dummies and focused on the performance of masks in protecting the wearer.   Dr. Lemieux said that she did not view the article as “being particularly on point”.[516]

393.         Dr. Lemieux explained that this study was a non-inferiority trial stating that:

394.         Dr. Lemieux also went on to make an observation that she said applied to a number of studies, including Loeb, that she did not see as helpful to consideration of the merits of a VOM policy:

395.         Dr. Brosseau explained that the study involved placing types of masks and respirators with varying fits on mannequins, located about three feet away using small radioactive aerosols, with the source mannequin generating an aerosol.  She testified that:

396.         Dr. Henry also noted the lack of exposure to droplets and stated further that the fit of a mask or respirator “made a difference in terms of preventing droplets from being expelled”.[522]

397.         Dr. McGeer noted that “as the fit gets better on either the source or receiver the number of particles that get through to the receiver’s respiratory tract goes down”.[523]

398.         As explained by Dr. Henry, this was a randomized control trial done in household settings.  She stated that: “not surprisingly”, “Things like hand hygiene, cleaning your hands regularly were important but use of face mask along with hand hygiene seemed to provide some benefit in prevention of a whole host transmission of influenza”.[525]

399.         Dr. McGeer commented at some length on the applicability of studies not conducted in acute care settings:

400.         This was a cluster randomized household trial conducted in Berlin unrelated to hospitals or healthcare.  It concluded that: “household transmission of influenza can be reduced by the use of non-pharmaceutical interventions such as facemasks and intensified hand hygiene when implemented early and used diligently”.[528]

401.         This study concerned influenza infections that developed in passengers after travelling on flights from New York to China.  The authors concluded that: “We recommend a more comprehensive intervention study to accurately estimate the protective effect of face masks for preventing influenza virus transmission on long-distance flights”.[530]

402.         When asked to comment on what this study has to say about VOM, Dr. Lemieux said that it indicates that wearing a mask will provide some level of protection against clinical disease around a person known to be symptomatic.[531]

403.         As previously stated, Dr. McGeer conceded that this study was “unquestionably not the best evidence”[532].  She noted that the investigation self-reported several limitations.[533]

404.         This 2011 article is titled “The use of masks and respirators to prevent transmission of influenza: a systematic review of the scientific evidence”.  Included for review were “randomized controlled trials and quasi-experimental and observational studies of humans published in English with an outcome of laboratory-confirmed or clinically-diagnosed influenza and other viral respiratory infections”.[535]

405.         The Abstract of this systematic review noted that:

406.         This was another study described by Dr. McGeer as “unquestionably not the best evidence” [in support of the Policy].[537] Dr. McGeer confirmed the conclusion of the authors that: “None of the studies established a conclusive relationship between masks/respirator use and protection against influenza infection.”[538] 

407.         Dr. Henry stated that this article demonstrated that there was “not a lot of direct evidence” but that “there was some evidence that it provides some benefit”. She explained that, because “there is not a lot of direct evidence…that’s why I think why we include studies that are not necessarily in a health care setting”.[539]

408.         Dr. Brosseau testified that: “this review also does not support the—it doesn’t present any strong evidence for either surgical masks or N95 respirators mostly because the studies are not powered or not done correctly”.[540]

409.         This literature review under Discussion included the following conclusions that were reviewed with Dr. McGeer in her cross-examination:

410.         Dr. McGeer agreed that this study provides “no evidence at all” concerning the effectiveness of face masks in the context of seasonal epidemic”.[544]

411.         Dr. McGeer confirmed that this study, for the reason given by the authors[546], concluded that: “As a consequence, it is not possible to make any definitive judgment on the efficacy of masks on this basis.”[547]

412.         This was a household study concerning which Dr. McGeer confirmed that “the very authors of this report urge caution in applying it to healthcare settings”[549]:

413.         This randomized control household trial concluded that: “Influenza transmission was not reduced by interventions to promote hand washing and face mask use”.[552]

414.         Dr. McGeer said this about this study in cross-examination:  “You can argue that because adherence was so poor, the negative trial really doesn’t matter and maybe I should not have wasted people’s time on it…”[553]

415.         This was another household study, one of primarily Hispanic households.  The authors concluded that:

416.         Dr. McGeer commented that:

417.         Dr. McGeer agreed[558] that the authors concluded that:  “Neither face mask use and hand hygiene nor face mask alone was associated with a significant reduction in the rate of ILI [influenza-like illness] cumulatively.”[559]

418.         Dr. McGeer agreed that this article does not assist in any way with respect to assessing the effectiveness of masks .[561]

419.         Dr. McGeer stated that this article is “additional evidence that face masks when worn by individuals prevent the egress of microbes, bacteria in this case, and viruses which are in the same emitted particles and contamination of the environment around them”.[563]

420.         This study related to the efficacy of surgical scrubs, gowns and masks.  It concluded that: “In contrast to the efficacy of scrubs and gowns, there is only weak evidence of the efficacy of face masks”.[565]

421.         Dr. McGeer explained that: