Employee Refusing to Vaccinate Frustrates Contract

In Croke v. VuPoint System Ltd., 2024 ONCA 354, the Ontario Court of Appeal examined whether the doctrine of frustration applied to an employment contract terminated due to an employee’s violation of a mandatory COVID-19 vaccination policy. The court upheld frustration of contract in this context.

VuPoint had a service contract with Bell Canada, under which it subcontracted technicians to perform installation work in Bell customers’ homes. The Appellant was one of these technicians.

In 2021, Bell Canada introduced a policy that required its subcontractors to be vaccinated against COVID-19. In response, VuPoint required installers to provide proof of vaccination. Non-compliant employees would be prohibited from performing work for Bell Canada and may not receive the assignment of any jobs.

The Appellant refused to disclose if he had been vaccinated, causing him to be ineligible to provide services for Bell Canada. Accordingly, the employer terminated his employment for non-compliance. The Appellant subsequently filed a wrongful dismissal lawsuit.

In response, the employer argued frustration of contract, claiming that Bell’s vaccination policy was an unforeseeable event not anticipated when the employment contract was created. The motion judge agreed, stating that the new policy made the Appellant unqualified for the job, thereby frustrating the employment contract’s core foundation.

The Appellant appealed, but the appellate court upheld the decision, confirming that the doctrine of frustration applied.

The Appellant argued that his personal choice to remain unvaccinated should prevent the doctrine from applying, but the Court disagreed. It held that the employee’s voluntary choice was irrelevant; it was the introduction of a new job requirement that he did not meet that rendered him unable to work.

The Court further found that the motion judge reasonably concluded that the Bell’s vaccination policy was a “supervening event” that was outside the control of VuPoint.

Refusal to comply with a COVID-19 vaccination policy can result in frustration of an employment contract, and employers can immediately terminate the agreement when it becomes frustrated. The employer does not necessarily need to provide the employee with an opportunity to resolve the underlying issue.