In recent decision of Croke v. VuPoint Systems Ltd., 2023 ONSC 1234, the employee refused to provide the employer with proof of their vaccination status. As such, the employer took the position that the employee was unvaccinated and could no longer continue to work for it, given that the employer, a sub-contractor to Bell Canada, had itself been subject to Bell’s own vaccination policy and requirements.
The employer therefore informed the employee that his employment would cease on October 12, 2021, owing to the fact that his contract of employment had become frustrated.
The employee challenged the termination of his employment and when the matter came before the Superior Court, the Court considered the fact that the employee could not perform any work for the employer’s customer, namely Bell, because Bell had itself mandated a vaccination policy for all of its subcontractors and their employees.
Furthermore, the added requirement to comply with the vaccination policy during the employment relationship was not the fault of either the employee or the employer, and had consequently emanated out of Bell’s requirements, read with the underlying supply agreement, that required compliance with all of Bell’s policies. The Court went on to hold that Bell’s policy change struck at the core of the employees’ contract of employment and upheld the employer’s position that the contract had become frustrated.
The decision, although instructive, was also fact specific and it will be interesting to see whether Courts will continue to follow suit, even in the absence of an external requirement to do so, or where other circumstances and facts may have otherwise justified the imposition of a vaccine policy, such as the general obligation clause under the OHSA, and/or the various recommendations “strongly recommended” by various Public Health Units, not to mention the customer, client or patient expectations that may also apply.
Preston Legal is currently litigating several similar cases around vaccine policies, and we will follow up with updates as the law continues to develop in this area.
