Despite it being more than three years after the declaration of the COVID-19 pandemic, courts are still deciding how COVID-19 affects employment law. My colleagues and I have written plenty of blogs on COVID-19. One of the main issues that we have written blogs on is COVID-19 vaccination policies.

Earlier this year, Ontario’s Superior Court of Justice released its decision in Croke v. VuPoint Systems Ltd. (2023 ONSC 1234) that addresses when a mandatory COVID-19 vaccination policy frustrates an employment contract for a federally regulated employee. This case is relevant because it is typically hard to terminate a federally regulated employee after one year of employment.

In Croke v. VuPoint Systems Ltd., Alan Croke worked for VuPoint Systems Ltd. (VuPoint) for a little over seven years as a systems technician. Croke knew that 99% of VuPoint’s business came from Bell Canada (Bell), as he exclusively worked on projects for Bell. Bell informed VuPoint that it will be implementing a mandatory COVID-19 vaccination policy for installers of Bell. In response, VuPoint made its own COVID-19 vaccination policy, as VuPoint would be unable to assign enough work to employees who are not vaccinated. Since Croke had not gotten vaccinated, VuPoint decided to give him two weeks of notice before his dismissal as well as almost $2,400 in severance pay. In those two weeks, Croke made it clear that he did not believe that he needed to get vaccinated and showed no signs of ever complying with VuPoint’s COVID-19 vaccination policy. In response to his termination, Croke filed a wrongful dismissal claim. VuPoint defended its decision to end Croke’s employment by stating that Bell’s COVID-19 vaccination requirement, which was entirely out of VuPoint’s control, resulted in the frustration of Croke’s employment contract.

Justice Pollak gave the court’s reasons for dismissing Croke’s wrongful dismissal claim. As part of her reasons, Justice Pollak looked at cases involving frustrated contracts. She noted that the frustration of a contract means that an employee is not entitled to common law notice of termination. Justice Pollak found that VuPoint’s lack of control over Bell’s COVID-19 vaccination policy made the facts analogous to cases where employees are unable to work because a statutory or legal change made them unqualified to perform their job, frustrating the employees’ contracts. As such, Justice Pollak found that Croke’s inability to complete his normal work duties for the foreseeable future, due to his refusal to get vaccinated, is a radical change that frustrates his employment contract. Justice Pollak stated that VuPoint was not required to modify Croke’s employment contract so he could continue working. Therefore, Justice Pollak dismissed the action and awarded VuPoint costs on a partial indemnity basis.

This case is interesting as it seems to be adding to a body of case law where decision-makers are finding that mandatory vaccination requirements imposed in response to third-party demands may cause the frustration of employment contracts. This could be notable for workplaces that are affected by third-party decisions. For example, an Indigenous education authority may now be able to argue that an employee they had to terminate due to a new policy requirement from the Chief and Council was the frustration of a contract. In such an example, the education authority may not be required to give that teacher any notice or pay in lieu of notice.

How Suzanne Desrosiers Professional Corporation can help

Before you terminate an employee and claim that the employment contract is frustrated, you should contact an employment lawyer. Each case is unique, and our employment lawyers can advise you on whether you have a valid reason to end the employment relationship with one of your employees. To get in contact with one of our employment lawyers, you can call us at (705) 268-6492 or email us at info@sdlawtimmins.com.