This lawyer is suing Metrolinx for $2 million. Why? The agency suspended his clients because they wouldn’t get vaccinated

This lawyer is suing Metrolinx for $2 million. Why? The agency suspended his clients because they wouldn’t get vaccinated

It may seem like forever ago, but think back to the fall of 2021, when the Ontario government required companies to create vaccine policies. Plenty of workers refused to get the shot, leading to firings, resignations, suspensions and, of course, a bunch of lawsuits. One case involves 10 former Metrolinx employees who were suspended without pay for not getting vaxxed. We spoke to Stan Fainzilberg, the lawyer handling their case.

Who are your clients?
The 10 Metrolinx employees I’m representing are all at the management level, ranging in age from early 30s to late 50s. A lot of them have engineering backgrounds and work in project management. And they’ve been at Metrolinx anywhere from four to 17 years. 

And what happened to them?
Last fall, the Ontario government mandated that companies adopt a vaccine policy. Nothing specific, just a policy. And Metrolinx decided that all of its employees needed to be double vaccinated. My clients didn’t comply with the policy, and Metrolinx suspended them indefinitely without pay. My clients are at the managerial level, so they aren’t part of a union. There are likely more Metrolinx employees who refused to get the vaccine, but I’m not sure how many. If they’re lower level, a union would be in charge of their grievance. 

Why didn’t they want to get vaccinated?
A lot of them have Eastern European backgrounds, and they have an inherent distrust of government campaigns. A couple of my clients are Romanian, for example, and Romani women were subjected to forced sterilization in the Czech Republic. Other clients rejected the policy on religious grounds. Personally, I’m triple vaxxed, but I understand where my clients are coming from. These are very difficult, complicated situations. It should be in the domain of public health and public institutions to institute and enforce these mandates, not private companies.

So what do your clients want?
Basically, we’re suing Metrolinx for breach of contract, and we’re seeking $2 million in damages for wrongful dismissal. All of my clients have an employment agreement with Metrolinx, and we’re arguing that the contract was broken when Metrolinx stopped paying them and giving them work. 

In response, Metrolinx said that your clients are technically still employed. What do you make of that?
Metrolinx left it vague, suspending them without pay until an unknown date. But there’s no such thing as indefinite unpaid leave. If Metrolinx wanted to bring my clients back, they would have done it by now. Most of the regulations in the province related to the vaccine have been removed. I think, effectively, my clients have been terminated; Metrolinx says they haven’t. Ultimately, it’s for a judge to decide. 

How has this affected your clients, financially and emotionally?
It’s been devastating. Financially, it’s obviously very difficult. Not only have they lost income, but the Canadian government doesn’t guarantee they will qualify for EI. They have no money coming in. They’re in limbo because of the suspension. These are regular people with mortgages and debts. It’s like we’re ignoring their welfare. 

Metrolinx has pointed to a section of the Ontario Occupational Health and Safety Act, which states that employers must take every reasonable precaution to protect their workers. How do you respond?
All of my clients were working from home when they were suspended, and their departments still have the option to continue working from home. So we feel as if they posed no real threat to other employees. 

And why $2 million? Why not go for, say, $30 million?
We wanted to make a claim that’s feasible. If you go in with a number that’s too high, it creates a bias, and the judge might perceive one side to be unreasonable. What we’re asserting relates to wrongful dismissal. The $2 million would include severance for all of my clients, which is based on a number of factors, like lost wages, age, position, length of employment and finding new employment in the future. 

There have been some similar cases like this, including Maple Leaf Sports and Entertainment and the Ottawa-Carleton District School Board. In those cases, vaccine mandates were found to be reasonable. Does that worry you?
The MLSE decision makes sense. The government had mandated that two doses were required at sporting events, so those MLSE employees couldn’t have gone in to work at Scotiabank Arena without being vaccinated. But I maintain that, in our case against Metrolinx, my clients were working from home at the time of their suspension and couldn’t have posed a threat to others. 

The Ottawa-Carleton District decision worries me a bit more. The arbitrator ruled that upholding vaccine mandates for teachers was reasonable even though the surrounding school districts didn’t implement similar measures. You never know who your judge is going to be or how their personal opinions might influence a decision.

Are there any cases that give you hope?
Yeah, the case of Canadian employees at Stellantis, the automobile manufacturing company. More than 300 employees were suspended for not getting vaxxed or refusing to share their status. The arbitrator said that, while a vaccine requirement was reasonable when it was first implemented at the company, it no longer applied because a review of evidence about waning immunity had concluded that there’s a negligible difference between receiving two doses and staying unvaccinated. I think the same will be true in our case. The narrative around vaccines is changing. 

When do you think this case will be decided?
Almost every case settles. If a reasonable settlement can be reached, that’s best for all parties involved. We probably won’t get a court date until the fall of next year. If it goes to court, there’s always a greater risk to my clients. Metrolinx can afford to lose; my clients, not so much. The outcome will depend on what happens in the meantime. If things stay open and there are no restrictions through next year, it will be good for my clients. If there’s a resurgence of Covid, we might see these restrictions as more necessary and a judge might be more likely to rule in favour of Metrolinx.