For the last two years, Canadian courts have addressed the issue of mandatory vaccination policies following the COVID-19 pandemic. Recently, an Ontario court has ruled that an employee’s refusal to comply with a mandatory COVID-19 vaccination policy may lead to frustration of an employment contract. A frustrated contract entitles the parties to treat the contract as if it has ended, with no obligation to continue the contract and no entitlement to either party, except the minimum entitlements under the Employment Standards Act, 2000. This is one of the first Canadian court cases to find that a refusal to become vaccinated may lead to frustration of contract.

Croke v. VuPoint Systems Ltd., 2023 ONSC 1234

The employee, Mr. Croke (“Croke”) was employed as a systems technician by VuPoint Systems Ltd. (“VuPoint”). VuPoint provides satellite television and smart home installation services on behalf of Bell Canada and Bell ExpressVu (collectively, “Bell”). Bell accounts for more than 99% of VuPoint’s annual income.

On September 8, 2021, Bell informed VuPoint that all systems technicians would be required to be vaccinated against COVID-19. As a result, VuPoint adopted a mandatory vaccination policy (the “Policy”). The Policy stated that non-compliant employees would be “prohibited from performing work for certain customers (including Bell)” and “may not receive assignment of any jobs.”

On September 28, 2021, VuPoint terminated Mr. Croke’s employment, effective October 12, 2021. Mr. Croke refused to provide his vaccination status to VuPoint during the intervening period. Subsequently, he commenced an action for wrongful dismissal and additional damages. In response, VuPoint argued that Mr. Croke’s employment ended due to frustration of the employment contract.

The Ontario Superior Court of Justice held in favour of VuPoint, finding that the employment contract had been frustrated. The Court noted that Mr. Croke received clear and unambiguous warnings that his failure to comply with the Policy could lead to the termination of his employment. The Court reasoned that Bell’s Policy required Mr. Croke to be fully vaccinated to interact in-person with Bell customers, so Mr. Croke lacked the necessary qualification to perform any of the duties of his position. The Court concluded that Mr. Croke’s complete inability to perform his job duties for the foreseeable future constituted a radical change that struck at the heart of the employment contract, resulting in frustration of the contract.

Take Aways

Croke is one of the first Ontario decisions to confirm that an employee’s refusal to comply with a COVID-19 vaccination policy amounts to frustration of an employment contract. This decision may have significant implications for employees who refuse to comply with their employer’s vaccination policies.

Interestingly, the employer in Croke was mandated by external obligations to require its employees to be vaccinated. It remains to be seen if the Courts will follow Croke in cases where an employer has full control over its COVID-19 vaccination policy.

The lawyers at Heeney Vokey LLP would be happy to help with navigating this legal issue.