In Maalouf v. Bayer Inc., 2023 ONSC 4875, Associate Justice Robinson allowed the Defendants questions on discovery regarding various aspects of the Plaintiffs’ attitude towards vaccinations.
The Plaintiff was terminated for just cause for refusing to follow the Defendants’ COVID vaccination policy.
She agreed to answer the question as to whether she received a COVID vaccination after her termination, as the Defendant had pled that her refusal to vaccinate would amount to a failure to mitigate her damages.
She refused however to answer any questions about whether she had received other vaccinations prior to or since termination.
The Court allowed these questions as set out below.:
[9] Ms. Maalouf has agreed to answer whether she has received a COVID-19 vaccination since termination. Only the questions on other vaccinations remain in dispute. I am satisfied that whether Ms. Maalouf has received other vaccinations both prior to and since termination is relevant to Bayer Inc.’s pleading that she did not have a reasonable basis for declining
vaccination. I accept Bayer Inc.’s argument that Ms. Maalouf’s motives in breaching the company’s vaccination policies are not clearly irrelevant. Notably, although an older case, as held in Doyle v. London Life Ins. Co., 1985 CanLII 301 (BC CA), at para. 28, motive is sometimes plainly relevant in cases where the court assesses dismissal for an employee’s knowing breach of a company policy. As MacDonald J.A. put it, “A corrupt motive may well tip the scales against an employee. A pure motive ought to be weighed in [the employee’s] favour.”
My Comments :
It is not set out in the decision whether the plaintiff was pleading that she had a reasonable basis for not following the policy. In fact, the Plaintiff argued that since the policy had no exemption for reasonable belief, what difference does it make what her reasons were for refusing?
Moreover asking her about non Covid vaccinations would seem to be an unnecessary intrusion into her personal medical history. Remember she did agree to answer whether she got the COVID vaccination after termination, as this would clearly affect her ability to mitigate her damages. Why would it matter if she never got the flu shot?
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