Croke v. VuPoint Systems Ltd., 2023 ONSC 1234

The Ontario Superior Court of Justice has determined that an employee’s refusal to comply with a mandatory COVID-19 vaccination policy can give rise to the frustration of contract.  In this case, a mandatory vaccination policy was implemented by Bell Canada, which operates through VuPoint Systems Ltd. (VuPoint). Two days after the policy was in effect, VuPoint implemented a policy that required employees to submit their proof of vaccination as soon as possible. The policy stated that if employees did not comply, they would be prohibited from working with Bell customers.


When an employee failed to provide his vaccination status, VuPoint did not assign him any work. Prior to his final day of employment, the employee provided the employer with a letter confirming that he would not disclose his vaccination status or consent to Bell’s mandatory policy. Due to the employee’s refusal to comply with the Covid policy, the employer provided him with two weeks’ pay and severance pay on his last day of employment.


The employee sued for wrongful dismissal, and aggravated, punitive and/or moral damages. The Plaintiff claimed that disclosing his vaccination status was a breach of privacy under section 8 of the Canadian Charter of Rights and Freedoms.


VuPoint maintained the position that the Plaintiff’s employment contract was frustrated. As Bell’s policy states, their employees must be fully vaccinated if their position requires interaction with customers. VuPoint argued that they had no alternative jobs for the employee. As a result, the employee’s contract was frustrated and his employment terminated.


In his decision, Justice Pollak confirmed that the employee received “clear and unambiguous” warnings. The warnings provided that failure to comply with the Policy could lead to the termination of his employment. As a result, the Court concluded that the employer was not liable for wrongful dismissal, aggravated, punitive, or moral damages. The employee’s termination was considered reasonable and the case was dismissed.