National Organized Workers Union v. Sinai Health System

National Organized Workers Union v. Sinai Health System Collection Decisions of the Court of Appeal Date 2022-11-22 Neutral citation 2022 ONCA 802 Docket numbers C70164 Judges van Rensburg, Katherine; Huscroft, Grant; Copeland, Jill M. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: National Organized Workers Union v. Sinai Health System, 2022 ONCA 802 DATE: 20221122 DOCKET: C70164 van Rensburg, Huscroft and Copeland JJ.A. BETWEEN National Organized Workers Union Applicant (Appellant) and Sinai Health System Respondent (Respondent) and Ontario Hospital Association Intervener Ian J. Perry and Mark Joseph, for the appellant Bonnie Roberts Jones, Elisha C. Jamieson-Davies, and Rachel May Counsell, for the respondent Frank Cesario, Eleanor A. Vaughan, and Danika L. Winkel, for the intervener Heard: September 22, 2022 On appeal from the order of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated November 20, 2021, with reasons reported at 2021 ONSC 7658. Copeland J.A.: Overview [1] The appellant appeals the order of the application judge denying its application for an interlocutory injunction. The injunctive relief which the application judge declined to grant sought to prohibit the respondent from enforcing a workplace mandatory vaccination policy pending the arbitration of a number of labour grievances challenging the policy. [2] The central issue on appeal turns on whether this court should intervene in the application judge’s discretionary decision to decline to exercise the Superior Court’s residual jurisdiction in labour relations matters to grant an interlocutory injunction pending the arbitration of the grievances. [3] At the hearing of the appeal, the court heard submissions from all parties on the preliminary issue of the application judge’s decision to decline to exercise the Superior Court’s residual jurisdiction in labour relations matters. After hearing those submissions, the court advised the parties that the appeal was dismissed, with reasons to follow. These are the reasons. Background and decision of the application judge [4] The appellant, a labour union, is the certified bargaining agent for over 500 employees at the respondent hospital. The majority of members of the appellant have jobs with direct patient interaction, including as porters, dietary aides, operating room attendants, and housekeeping attendants. [5] The respondent is a hospital providing healthcare to members of the public through three campuses: Mount Sinai Hospital, Hennick Bridgepoint Hospital, and the Lunenfeld-Tanenbaum Research Institute. [6] Ontario’s healthcare sector has faced an array of risks during the pandemic. Between February 16, 2020 and June 12, 2021, 568 COVID-19 outbreaks were reported to have originated from within hospitals. When the application was heard, there had been 24,722 COVID-19 cases among Ontario health sector workers. [7] Health Canada approved the use of COVID-19 vaccines in December 2020. The respondent thereafter sought to have its eligible workforce vaccinated by providing vaccine access and educating its workers on the efficacy and safety of the vaccine. [8] Ontario’s Chief Medical Officer of Health introduced Directive #6 on August 17, 2021. The Directive mandated every healthcare sector employer to develop and implement a policy that required hospital employees to provide their vaccination status to their employer and, if not fully vaccinated, to submit to regular testing and reporting. In response to the Directive, the respondent implemented a “vaccinate or test” policy, which required employees to report their vaccination status and, if not fully vaccinated, to report two test results every week to Occupational Health. The respondent responded to non-compliant employees with an expedited progressive discipline approach. [9] On October 26, 2021, the respondent implemented a mandatory vaccination policy (the “Policy”). This is the Policy which underlies the injunctive relief sought in this appeal. The Policy required employees to be fully vaccinated against COVID-19 by December 9, 2021 or their employment would be terminated, subject to medical or non-medical exemptions. To be fully vaccinated by December 9, 2021, an employee would need to have had their first dose administered by November 11, 2021. [10] The respondent’s Executive Vice President, People & Culture, and Chief Human Resources Officer outlined several reasons for the mandatory policy. These included: (1) the unreliability of rapid antigen testing; (2) problematic compliance rates among staff under the “vaccine or test” approach; (3) specific incidents of the respondent’s staff being denied access to partner hospitals because they could not show proof of vaccination, which jeopardized urgent patient care; (4) the Ontario COVID-19 Science Advisory Table’s strong support for a vaccine mandate for hospital workers; (5) the Ontario Hospital Association’s recommendation for a vaccine mandate; and (6) the conclusion of an operational risk assessment undertaken by the respondent. Although the provincial government declined to impose a province-wide vaccine mandate on healthcare workers, the Minister of Health indicated the province’s support for hospitals to make their own decisions on vaccine mandates. [11] On November 3 and 4, 2021, the appellant filed a number of grievances against the Policy. The grievances allege that the Policy is unreasonable, and that it violates various articles of the collective agreement as well as various pieces of legislation. [12] On November 5, 2021, the appellant commenced an urgent motion (later converted to an application) seeking an injunction to enjoin the respondent from enforcing the Policy pending the arbitration of the grievances. [13] As of November 11, 2021, approximately 20 NOWU members had failed to submit proof of receipt of their first vaccine dose. I address in more detail the evidentiary basis for the application as it relates to the grounds of appeal in the course of the analysis below. [14] The respondent raised a preliminary issue before the application judge, whether she should exercise the Superior Court’s residual jurisdiction in labour relations matters to grant injunctive relief pending the arbitration of the grievances in the circumstances of this case. [15] The application judge dismissed the application for an interlocutory injunction. She was not satisfied that it was appropriate for the Superior Court to exercise its residual jurisdiction in labour relations matters on the record before her. She concluded that there was no remedial gap in the labour relations regime that would support the exercise of the Superior Court’s residual jurisdiction. I address the reasoning that led the application judge to reach this conclusion in the course of the analysis of the grounds of appeal. Grounds of appeal [16] As noted above, at the appeal hearing, the court heard from the parties first on the preliminary issue of whether the application judge erred in declining to exercise the residual jurisdiction of the Superior Court in labour relations matters. We found no error by the application judge, and dismissed the appeal on that basis. As such, I outline only the grounds of appeal relating to the jurisdictional issue. [17] The appellant raises three grounds of appeal in relation to the jurisdictional issue: 1. Did the application judge err in finding that if an injunction were not granted, the harm at issue was employees being placed on unpaid leave or terminated from employment? 2. Did the application judge err by failing to engage in an analysis of all three branches of the RJR-MacDonald test in considering whether to exercise the court’s residual jurisdiction? 3. Did the application judge err in finding that assessing the harm element in the jurisdictional analysis based on the subjective reaction of individual employees would be legally unworkable? [18] These reasons are structured as follows. First, I review the basic principles of the exclusive jurisdiction model of labour relations. Second, I address the standard of review in relation to the application judge’s discretionary decision. Third, I address the three grounds of appeal raised by the appellant in relation to the jurisdictional issue. (1) The exclusive jurisdiction model of labour relations [19] It is useful to return to first principles in order to situate the nature and scope of the Superior Court’s residual jurisdiction in labour relations matters. [20] Labour relations statutes in Canada are intended to provide a complete code governing all aspects of labour relations. Based on this interpretive approach to labour relations legislation, the Supreme Court of Canada has held that the legislation establishes an exclusive jurisdiction model. The labour relations regime has exclusive jurisdiction over matters arising out of a collective agreement: St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704, at pp. 718-19, 721; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 50-58. [21] Labour relations legislation establishes binding arbitration as the forum for the resolution of disputes in the context of collective bargaining relationships. In Ontario, this legislative policy is embodied by s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA”). [22] Labour arbitrators have broad remedial authority, which allows them to flexibly craft labour relations remedies to workplace issues. Of note for this appeal, the remedial jurisdiction of an arbitrator includes making orders for reinstatement of employment with seniority and compensation for lost wages: Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 45-51; James T. Casey and Ayla Akgungor, ed., Remedies in Labour, Employment and Human Rights Law, loose-leaf (Toronto: Carswell, 2022), Ch. 2, III, C., at para. 2:53; Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Association, 2021 CanLII 44852 (Ont. L.A.), at para. 38; Lakehead University v. Lakehead University Faculty Association, 2018 CanLII 112407 (Ont. L.A.), at paras. 139-44. [23] Given the comprehensive nature of the labour relations regime, the jurisdiction of the Superior Courts in labour relations matters is residual: St. Anne Nackawic, at pp. 718-19, 725-26, 729-30; Weber, at para. 57. As the Supreme Court described it in St. Anne Nackawic at pp. 718-19: “it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.” [24] In the context of the issue raised in this appeal, injunctive relief pending the arbitration of a grievance, the jurisprudence is clear that the Superior Court has residual discretion to grant injunctive relief only if the arbitral process cannot provide an adequate alternative remedy. The exercise by the Superior Court of its residual discretion is exceptional. It is only to be exercised where there is a remedial gap in the labour relations regime. [25] In this context, “remedial gap” does not mean that the remedy available under the labour relations regime must be identical to remedies that are available in the Superior Court. It does not mean that the remedy available under the labour relations regime must be the specific type of remedy that a party might want. A remedial gap sufficient to justify the Superior Court exercising its residual discretion must rise to the level of “a real deprivation of ultimate remedy”: Weber, at para. 57; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at para. 23; Ontario Nurses Assn. v. Toronto Hospital, [1996] O.J. No. 3861 (Gen. Div.), at paras. 7-10; Rattai v. Hydro One Inc., 2005 CanLII 13786, at paras. 8-12. [26] In considering whether adequate remedies are available under the labour relations regime, it is important to bear in mind that the legislative choice under the LRA was to include provisions for expedited hearings, rather than give arbitrators the jurisdiction to issue substantive injunctions on employer actions or policies in advance of a grievance arbitration: LRA, s. 49. Although the LRA gives arbitrators the authority to make interim orders on procedural matters, it does not give them authority to make interim orders on substantive matters such as reinstatement pending the arbitration of a grievance: LRA, ss. 48(12) and (13). This speaks to a legislative preference for expeditious arbitration, rather than injunctive relief pending an arbitration. This is a factor which supports restraint in the exercise of the Superior Court’s residual jurisdiction. [27] There is no dispute in this case that the underlying grievances about the respondent’s mandatory vaccination policy are matters that arise out of the collective agreement and are properly addressed through the grievance arbitration process. Article 8 of the applicable collective agreements between the appellant and the respondent for full-time and part-time workers provides for grievance arbitration when there is a difference between a member of the bargaining unit and the respondent relating to the interpretation, application, administration, or alleged violation of the collective agreement. As a result, the grievances are matters within the exclusive jurisdiction of the arbitrator. The Superior Court retains only residual jurisdiction. (2) Standard of review [28] The application judge’s decision to decline to exercise the Superior Court’s residual jurisdiction in labour relations matters was a discretionary decision. As such, it attracts significant deference on appeal. It may only be set aside if it discloses error of law or palpable and overriding error of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36; H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, 386 D.L.R. (4th) 262, at para. 19; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, at para. 22. (3) Analysis of the errors alleged by the appellant [29] The appellant concedes that the application judge stated the correct legal principles with respect to the Superior Court’s discretion to exercise its residual jurisdiction in labour relations matters. However, the appellant argues that she committed errors of law and mixed fact and law in her application of the principles. I will address each argument raised by the appellant in turn. (i) Did the application judge err in finding that if an injunction were not granted, the harm at issue was employees being placed on unpaid leave or terminated from employment? [30] The appellant argues that the application judge erred in finding that if an injunction were not granted, the harm at issue to the appellant’s members would be “purely monetary”.[1] Thus, the appellant challenges the finding by the application judge that the harm at issue was the potential for union members who chose not to be vaccinated to be placed on unpaid leave or terminated from employment – harm that could be remedied by the arbitrator through an order for reinstatement and an award for lost wages. The appellant argues that this characterization of the harm by the application judge is wrong, and that the harm to members was compelled vaccination without their informed consent. The appellant further argues that the application judge failed to appreciate the material evidence before her and disregarded the violations of bodily autonomy asserted in the affidavits of two of its members. [31] I briefly summarize the evidence relevant to this argument, and the application judge’s reasons. [32] The application judge summarized the affidavit evidence relevant to this issue as follows: As part of its evidentiary record, NOWU has delivered affidavits from two of its unvaccinated members. One describes themselves as a single parent of four children. They believe they have not been fully informed of the adverse effects or risks resulting from the vaccines, and that the current available information is insufficient. They do not want to get the vaccine because of these concerns. However, they cannot afford to lose their job. If the enforcement of the policy is not delayed, they depose that they will have no choice but to submit to the vaccine, under protest. They depose that they have endured significant stress and anxiety as a result of the vaccination policy. Another affiant holds the same concerns about the vaccines. This affiant also deposes that they tested positive for COVID-19 in January 2021 and have made a complete recovery. They applied for a medical exemption to the vaccine policy relying on an antibody test showing a high volume of antibodies for COVID-19 in their system, but the request was denied. They depose that if the implementation of the vaccination policy is not delayed, they will have no choice but to submit to the vaccine, under protest. Moreover, they also depose to suffering significant amounts of distress as the date for termination under the policy approaches. None of the affiants’ objections to the vaccine qualify them for an exemption to Sinai’s policy. [33] Based on this evidence, the appellant argued below, and maintains on appeal, that for purposes of considering interlocutory injunctive relief, the harm to its members should be characterized as that at least some of the unvaccinated employees would be compelled to be vaccinated. The appellant submitted that this would be contrary to principles of informed and voluntary consent. According to the appellant, because vaccination cannot be undone, if injunctive relief were not granted, the harm would be irreparable, would render the arbitration moot, and could not be remedied by any remedy available to a grievance arbitrator. [34] As noted above, the application judge rejected the appellant’s characterization of the harm at issue if an injunction were not granted. She found that the harm at issue was that some members of the appellant may be placed on unpaid leave or terminated from employment, if they chose to remain unvaccinated. The following extract from the application judge’s reasons makes clear her finding on this issue: They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other. . . . I accept that this is a difficult, stressful, and unwelcome dilemma for the employees concerned. But having to choose between two undesirable alternatives does not create harm that will render the arbitration moot. [35] The application judge found that loss of employment and related loss of income was harm that could be remedied by the arbitrator in the event the union prevailed in the grievances. An arbitrator could order reinstatement, and provide complete and retroactive monetary compensation for lost wages, as well as remedies addressing any loss of seniority. The application judge concluded that since the labour relations process could remedy the harm of loss of employment and lost wages, there was no remedial gap warranting the discretionary exercise of the Superior Court’s residual jurisdiction. [36] The application judge made no error of law regarding the principles applicable to the Superior Court’s exercise of its residual jurisdiction in labour relations matters. She correctly stated the applicable principles and referred to the relevant body of caselaw. Of particular relevance to this ground of appeal, she recognized that the Superior Court should only exercise its residual jurisdiction in labour relations matters to grant injunctive relief if the labour relations regime did not provide an adequate alternative remedy. [37] In order to consider whether the labour relations regime provided an adequate remedy, the application judge considered the nature of the potential harm if an injunction were not granted, and whether the remedies available through the grievance arbitration process could remedy that harm. The characterization by the application judge of the potential harm that would result if injunctive relief were not granted is a question of mixed fact and law. It involves the application of a legal standard (which she correctly stated) to a set of facts. [38] The application judge made no palpable and overriding factual error in the findings she made about the harm at issue if injunctive relief were not granted. At its core, the harm at issue was the potential for being placed on leave without pay or terminated under the Policy, if an employee chose to remain unvaccinated. The appellant’s members were not being forced to be vaccinated, denied bodily autonomy, or denied the right to give informed consent to vaccination. They could choose to be vaccinated or not. If they chose not to be vaccinated, they faced being placed on unpaid leave or having their employment terminated. This potential harm is fundamentally related to employment. It is harm which an arbitrator has the tools to remedy. If the appellant were to prevail in the arbitration, an arbitrator could order reinstatement without loss of seniority and compensation for lost wages. There is no palpable and overriding error in the application judge’s conclusion that there was no remedial gap in the labour relations regime that warranted the exercise of the Superior Court’s residual jurisdiction. [39] The application judge’s characterization of the harm is consistent with other trial level decisions considering requests for injunctive relief in relation to mandatory vaccination policies in both unionized and non-unionized workplaces: Wojdan v. Canada (Attorney General), 2021 FC 1341, at paras. 27 and 34-36 (appeal dismissed as moot: 2022 FCA 120); Lachance c. Procureur général du Québec, 2021 QCCS 4721, at paras. 137 and 144; Kotsopoulos v. North Bay General Hospital, [2002] O.J. No. 715 (S.C.), at paras. 16-18; Milka Cavic v. Canadian Union of Public Employees Union Local 905, 2022 CanLII 5015 (Ont. L.R.B.) at para. 43; Lavergne-Poitras v. Canada (Attorney General), 2021 FC 1232 at para. 7. See also Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078, 275 L.A.C. (4th) 187, at para. 79, for similar reasoning in the context of a mandatory drug and alcohol testing policy. [40] If the Superior Court were to intervene to grant injunctive relief pending a grievance arbitration every time a member of a bargaining unit felt pressure to comply with an employer policy because of the risk of employment discipline, including loss of employment, it would fundamentally undermine the principle that the Superior Court’s jurisdiction in labour relations matters is residual. The application judge quite properly recognized this concern: Were the court to intervene to grant injunctive relief whenever a member of a bargaining unit was facing the loss of employment, the courts would be full of applications for injunctions, and the labour relations scheme designed by Parliament would become impoverished. [41] It is not uncommon for employees to have to make choices in the context of their employment that they might not choose to make absent workplace considerations. In a unionized environment, if the employee objects to the requirements of a workplace policy, the remedy is a grievance carried by the union. If the employee chooses not to comply with the policy pending the grievance arbitration, they may face workplace discipline, including, depending on the circumstances, termination. In these circumstances, employees sometimes have to make difficult choices. To characterize this type of choice as something other than a potential loss of employment (compensable by an arbitrator by the usual remedies of reinstatement and awards for lost wages), would jeopardize the role of arbitration as the exclusive forum to resolve workplace disputes by permitting “routine access to the courts”: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, at para. 39; Rattai, at paras. 10-12. [42] Before leaving this ground of appeal, I briefly address the appellant’s submission that the application judge disregarded the evidence in the affidavits of two of its members. This submission is without merit. The application judge expressly considered the evidence in the two affidavits and made factual findings based on the entire record before her, including those affidavits. The appellant disagrees with the findings of the application judge about the nature of the potential harm if an injunction were not granted. However, they were findings open to the application judge on the record before her. [43] In sum, the application judge made no error of law or palpable and overriding factual error in her characterization of the harm at issue if an injunction were not granted. Nor did she err in her conclusion that the appellant had failed to establish a remedial gap in the labour relations regime warranting the exercise of the Superior Court’s residual jurisdiction. (ii) Did the application judge err by failing to engage in an analysis of all three branches of the RJR-MacDonald test in considering whether to exercise the court’s residual jurisdiction? [44] The appellant argues that the application judge erred in failing to engage in an analysis of all three branches of the RJR-MacDonald test for an interlocutory injunction in considering whether to exercise the Superior Court’s residual jurisdiction in labour relations matters: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Relatedly, the appellant argues that the application judge considered the irreparable harm branch of the RJR-MacDonald test, and erred in failing to consider the other branches of the test for an interlocutory injunction. In other words, the appellant argues that the application judge considered one branch of the test for an interlocutory injunction (irreparable harm) and made it dispositive of the jurisdictional issue. [45] This argument has two flaws. First, it misconceives the application judge’s reasoning. Second, it fails to distinguish between the jurisdictional issue before the application judge, and the merits of the request for injunctive relief. [46] Dealing with the first flaw, the appellant is wrong in asserting that the application judge considered the irreparable harm branch of the RJR-MacDonald analysis. The application judge never got to applying the RJR-MacDonald test for an injunction because she declined to exercise the residual jurisdiction of the Superior Court in labour relations matters. [47] The jurisdictional analysis required her to consider whether there was a remedial gap in the labour relations regime that could justify the court exercising its residual jurisdiction. That required her to consider the potential harm if an injunction were not granted, and whether that potential harm could be addressed by remedies available to a grievance arbitrator. [48] In the course of her analysis of the jurisdictional issue, the application judge observed that the issue of whether there was a remedial gap in the labour relations regime which could justify exercising the court’s residual discretion engages many of the same considerations as the irreparable harm branch of the test of an interlocutory injunction. That observation is accurate in the circumstances of this appeal. But the application judge was not applying the irreparable harm branch of the test for an interlocutory injunction. [49] This brings me to the second flaw in the appellant’s argument. If the appellant’s submission were accepted, it would mean that whenever a judge is faced with deciding whether to exercise the court’s residual discretion to grant injunctive relief pending the arbitration of a grievance, the court would have to decide the request for injunctive relief on the merits as part of deciding the threshold jurisdictional issue. [50] In some circumstances, including in this case, the assessment of whether there is a remedial gap as part of the jurisdictional analysis may raise considerations very similar to those considered under the irreparable harm branch of the test for an interlocutory injunction. However, this overlap of considerations in the jurisdictional analysis and the test for an injunction does not lead to the conclusion that a judge considering an application for injunctive relief pending a grievance arbitration must consider the request for an injunction on the merits as part of deciding whether to exercise the residual jurisdiction. In some cases, judges who conclude that it is not appropriate to exercise the Superior Court’s residual jurisdiction in labour relations matters go on to consider, in the alternative, the merits of the application. But that step is not required. (iii) Did the application judge err in finding that assessing the harm element in the jurisdictional analysis based on the subjective reaction of individual employees would be legally unworkable? [51] The appellant argues that the application judge erred in finding that assessing the harm to employees if an injunction were not granted based on the subjective reaction of individual employees would be legally unworkable. [52] This argument focuses on a portion of the application judge’s reasons which followed her conclusion that the harm at issue (unpaid leave or termination) could be remedied by the arbitrator through reinstatement and compensation for lost wages. The application judge went on to note that the appellant had not proven that all of its members who were opposed to vaccination would get vaccinated if injunctive relief were not granted. Rather, the harm as the appellant characterized it (“coerced” vaccination) would only apply to members of the union who would get vaccinated; it would not apply to members who were more stalwart and would refuse to be vaccinated. Thus, if the appellant’s characterization of the harm of not granting an injunction were accepted, it would only apply to some of the members opposed to vaccination – that is, the harm would be irreparable for some members (those who would get vaccinated) and would be reparable to others (those who would continue to refuse to be vaccinated). [53] The application judge was of the view that this would import a subjective element to assessing the harm which would be “legally unworkable”. She continued: On such an analysis, the court would have residual jurisdiction to enjoin the implementation of the policy with respect to those who are susceptible to acceding to it to keep their income, because the powers of the labour arbitrator cannot extend to undoing a vaccination. At the same time, the court would have no residual jurisdiction to enjoin the implementation of the same policy with respect to those who will not get vaccinated, even if it means losing their income, because that harm is reparable and can be addressed through the labour arbitration process. Leaving aside the practical difficulties with determining which bargaining members fall into which camp, the court’s residual jurisdiction cannot be engaged or not depending on how an individual member will respond to the policy. When a union seeks injunctive relief for the benefit of all of its members, jurisdiction cannot workably arise on a case-by-case basis. [54] It is not necessary that this court decide whether there is any error in this conclusion by the application judge. [55] Reading the reasons of the application judge as a whole, her comments about the unworkability of a subjective approach to the characterization of the harm if an injunction were not granted do not form the crux of her reasons for declining to exercise the court’s residual jurisdiction. Rather, the fundamental reason that she declined to exercise the Superior Court’s residual jurisdiction was because she found that the harm at issue was the loss of employment. As such, it could be remedied by the arbitrator and there was no remedial gap warranting the exercise of the Superior Court’s residual jurisdiction. Conclusion [56] The application judge did not err in law or make any palpable and overriding error of fact. There is no basis for this court to intervene in her discretionary decision to decline to exercise the Superior Court’s residual jurisdiction in labour relations matters and to decline to grant an interlocutory injunction pending the arbitration of the grievances. [57] As the court advised at the close of the hearing, the appeal is dismissed. [58] As agreed by the parties, the appellant shall pay costs of the appeal to the respondent in the amount of $20,000, inclusive of disbursements and applicable taxes. Released: November 22, 2022 “K.M.v.R.” “J. Copeland J.A.” “I agree. K. van Rensburg J.A.” “I agree. Grant Huscroft J.A.” [1] The phrase “purely monetary” is the characterization in the appellant’s factum, not the language of the application judge.