In Croke v. VuPoint Systems Ltd., 2023 ONSC 1234 (“Croke”), the Ontario Superior Court has ruled in favour of an employer concerning an employee’s refusal to comply with their employer’s mandatory COVID-19 vaccination policy.
The plaintiff, Mr. Alan Croke (“Mr. Croke”), was employed as a systems technician by VuPoint Systems Ltd. (“VuPoint”), a technology company in Ontario, Canada, since May 2014. VuPoint is an employer that operates under federal regulation and offers satellite television and smart home installation services as an authorized representative of Bell Canada and Bell ExpressVu (collectively referred to as “Bell”). Bell is the main source of income for VuPoint, accounting for over 99% of its annual revenue.
In the context of the COVID-19 pandemic, many companies adopted measures to ensure the safety of their employees and customers. One of the most significant actions was mandating COVID-19 vaccination for all employees. In early September 2021, Bell Canada, one of the leading telecommunication companies in Canada, implemented a mandatory COVID-19 vaccination policy for its vendors and contractors.
To ensure compliance with Bell’s policy, VuPoint, which acts as an agent for Bell, enacted its own internal mandatory COVID-19 vaccination policy for its installers. The VuPoint policy mandates that all installers be vaccinated against COVID-19 and provide evidence of vaccination.
Under the VuPoint Policy, installers who do not comply with the mandatory COVID-19 vaccination requirement may be prohibited from performing work for certain customers, including Bell. Additionally, non-compliant installers may not receive the assignment of any jobs. However, the Policy does not address termination of employment.
Mr. Croke failed to provide proof of vaccination, rendering him ineligible to perform work for Bell. As the majority of VuPoint’s work comprised almost exclusively Bell jobs, there were no other assignments available for Mr. Croke.
Following Mr. Croke’s failure to provide proof of vaccination, VuPoint informed him on September 28, 2021, that his employment would be terminated, effective October 12, 2021. During the intervening period, Mr. Croke informed his supervisor that he would not be providing proof of vaccination due to privacy laws. Mr. Croke further alleged that VuPoint was discriminating against him based on his vaccination status. Mr. Croke’s evidence was that he was “caught off-guard by the termination notice, panicked and acted without legal advice.”
In his legal claim, Mr. Croke pursued summary judgment against VuPoint for wrongful dismissal damages and claimed aggravated, punitive, and/or moral damages. He argued that VuPoint couldn’t evade its duty to warn employees of consequences for non-compliance with employer policies by labelling the termination as a “frustration of contract.”
VuPoint contended that Mr. Croke’s employment was frustrated since neither he nor the company was responsible for Bell’s introduction of a mandatory vaccination requirement for its vendors and contractors. It was acknowledged by both parties that Mr. Croke’s capability to offer services to Bell was a crucial aspect of his job. However, due to Bell’s mandatory vaccination policy, Mr. Croke was unable to engage with Bell customers, which hindered his ability to fulfill his job responsibilities.
In the evidence presented, Bell’s policy did not offer any alternative options for employees who were not fully vaccinated, such as rapid testing. The policy also included a provision for compliance auditing, which required proof of vaccination. Failure to comply with the policy was deemed a material breach of the Supply Agreement between Bell and VuPoint.
During the course of the proceedings, VuPoint maintained its stance that Mr. Croke’s employment was frustrated. The Court ultimately concurred with VuPoint’s position and arrived at the conclusion that Mr. Croke’s employment contract was frustrated due to unforeseen circumstances. The implementation of Bell’s Policy that required COVID-19 vaccination as a mandatory condition for subcontractors to be eligible to perform installation services for Bell meant that Mr. Croke was unable to perform his duties without vaccination. Thus, Mr. Croke lacked the necessary qualifications as per Bell’s Policy.
The alteration of the employment relationship resulted from unforeseen circumstances that were not anticipated by either party at the beginning of their relationship. The pandemic-related mandatory vaccine policy was not something that VuPoint and Mr. Croke could have predicted when they entered into their employment agreement in 2014. Although Bell’s supply agreements historically required subcontractors’ employees to comply with Bell’s policies, the implementation of a mandatory vaccine policy was an unprecedented change.
The Court found that the change in the employment relationship was not the responsibility of either Mr. Croke or VuPoint, as it arose due to Bell’s actions. VuPoint was obligated, as per Bell’s supply agreement, to adhere to Bell’s policies. Taking all these factors into account, the Court concluded that Bell’s Policy significantly impacted Mr. Croke’s employment contract with VuPoint.
Croke relied on the recent arbitral award from British Columbia (Fraser Health Authority v. Hospital Employees’ Union (Tracy London Termination), 2022 CanLII 91089 (B.C. L.A.) (“Fraser”)), which found an employment contract to have been frustrated by a unionized employee’s refusal to comply with a provincial COVID-19 vaccination mandate. The arbitrator compared the requirement to have employees be fully vaccinated to cases where employees required certain security clearances in order to work.
Croke and Fraser outline to both employers and employees that, in specific circumstances, an employee’s non-compliance with a COVID-19 vaccination mandate can result in the termination of their employment without any entitlement to notice of termination.
It is yet to be determined whether a court will ascertain the frustration of an employment agreement in cases where the employer has the discretion to implement or enforce a vaccination policy or if alternative work is available that doesn’t require vaccination. The Croke and Fraser decisions offer some useful perspective (although it is specific to the facts of the case) on the Court’s stance towards mandatory vaccination disputes in the workplace.
Written by Mario Delgado with contribution from articling student Jill Wiberg.