In Croke v VuPoint Systems Ltd., the Ontario Superior Court of Justice recently found that an employee’s failure to comply with his employer’s vaccination requirements amounted to a frustration of contract, disentitling the employee to wrongful dismissal damages at common law.
The employer, VuPoint, provided installation services for Bell Canada. The employee exclusively worked for Bell, through VuPoint.
On September 8, 2021, Bell advised its subcontractors, including VuPoint, that it was imposing a mandatory vaccination requirement on all subcontractors who performed installation services. VuPoint then adopted a mandatory vaccination policy (Policy) requiring all installers to be vaccinated against COVID-19. The Policy stated that non-compliant employees would be prohibited from performing work from certain customers (including Bell), and may not receive the assignment of any jobs.
The employee refused to be vaccinated. On September 28, 2021, he was advised that his employment would be terminated effective October 12, 2021, due to his refusal to comply with the Policy. In response, the employee made it clear that he did not intend to become vaccinated. Upon termination, the employee brought a wrongful dismissal action. VuPoint argued that “being able to work for Bell and enter the home of Bell’s customers” was a fundamental part of the employee’s position, and the complete inability to perform that work was a frustration of contract.
The Court noted that the effect of a...
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