In Croke v VuPoint Systems ( 2023 ONSC 1234) Justice Pollak had a situation where the Plaintiff worked as an installer for the defendant whose only client was Bell. Bell imposed a rule on all of its contractors that anybody working on Bell matters must be vaccinated. The Defendant therefore adopted its own mandatory vaccine policy which said that if anyone refused they would not be assigned any work .
The Plaintiff refused to have the vaccine. He was then terminated .
The Court determined that the employment agreement had been frustrated because :
1) None of the parties at the time the employment relationship was formed in 2014 could reasonably have anticipated the COVID epidemic and the imposition of a vaccine policy by their only client.
2) The requirement of mandatory vaccination was brought on by a third party, Bell. and as such was an unforeseen intervening event.
3) As result of the policy and the plaintiff’s decision, he was no longer capable of performing the essential duties of his job
The result of this finding was that the employee was not entitled to common law reasonable notice.
My Comments:
One may ask how this could be frustration when the Plaintiff could have avoided this result by simply taking the vaccine ?
Justice Pollack found that this was like the case of an employee who was incapable of performing their job due to either a lack of security clearance or a loss of a professional license.
She said as follows:
” The fact that the Plaintiff could have chosen to be vaccinated does not mean that he was in default as the circumstance which caused the frustration was the result of a decision by Bell, not the plaintiff or the Defendant . “
I disagree.
Unlike those loss of ability to work cases where the restriction is imposed by a third party over which the employee has no control, in this case the Plaintiff made himself unable to work by refusing to be be vaccinated.
In any event, the outcome is the same as frustration of contract means the employee is not entitled to either statutory or common law notice.
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