Mandate from only client – Bell - made worker unable to perform any work
The Ontario Court of Appeal has dismissed the appeal of a worker who claimed that his termination for refusing to comply with a vaccination mandate from his employer’s only client was a wrongful dismissal rather than a frustration of employment.
The worker was a technician for VuPoint, a company that provides satellite television and smart home installation services for Bell Canada. VuPoint was under contract to Bell for its employees to work for Bell and enter the homes of Bell customers to provide their services. Bell was VuPoint’s only client.
In September 2021, Bell informed VuPoint that all technicians working on Bell projects had to be vaccinated against COVID-19. Bell implemented its own mandatory vaccination policy and required all contractors and agents who worked at or visited any Bell location or customers to be fully vaccinated.
The deadline for vaccination was September 20 and Bell’s policy didn’t include any alternative options to vaccination. If any VuPoint employees didn’t provide proof of vaccination and continued to work, Bell would consider it a material breach of its agreement with VuPoint.
As a result, VuPoint implemented its own mandatory vaccination policy requiring all installers to provide proof of vaccination. Noncompliant employees would be prohibited from performing work for Bell.
Two weeks’ notice
The worker didn’t want to get vaccinated, so he applied for a new job shortly thereafter. On Sept. 28, he hadn’t yet provided proof of vaccination, so VuPoint provided him with two weeks’ notice that his employment would be terminated Oct. 12 for noncompliance. The worker replied with a letter confirming his refusal to comply with the policy and claiming that it was discriminatory.
The worker eventually found new employment in March 2022 at a lower pay rate. He sued VuPoint for wrongful dismissal, but VuPoint argued that the employment contract was frustrated from Bell’s policy, over which the company had no control. Bell’s policy prevented the worker from being able to work, said VuPoint.
A motion judge agreed with VuPoint and dismissed the worker’s action, finding that the worker was aware of Bell’s policy and he only provided services to Bell. Without proof of vaccination, the worker couldn’t continue provided services to Bell, said the judge, adding that the worker was given two weeks’ working notice and “was aware of the consequence of non-compliance with the new vaccine qualification for at least [this] two-week period.”
The worker appealed, arguing that the motion judge erred in law by finding frustration of the employment contract and that the “supervening event” that caused frustration was outside of VuPoint’s control. He also argued that he did not receive a clear and unambiguous warning that his vaccination status would result in termination of employment.
Frustration of employment
The Court of Appeal noted that frustration of employment requires a “supervening event” that radically altered the contractual obligations, was not foreseeable or contemplated in the employment contract, and was not caused by either of the parties. The worker argued that the third criteria wasn’t met because the frustration stemmed from his voluntary decision not to comply with the policy.
The appeal court disagreed with the worker’s argument, finding that the frustration was caused not by the worker’s decision but rather by Bell’s mandatory vaccination policy. There was no reference to the conduct of employees by Bell when it informed VuPoint of the policy, just that they couldn’t perform any Bell work if they weren’t vaccinated, the court said.
The appeal court also found that, had there been evidence that the policy was a temporary measure or the worker intended to get vaccinated, then the fundamental obligations in the employment contract may not have been radically altered. However, this wasn’t the case the Bell policy was a radical change to the worker’s contractual obligations, the court said in finding that the motion judge’s determination of frustration was reasonable.
The Court of Appeal also found that the motion judge didn’t err when they found the supervening event – the Bell policy – was not foreseen or contemplated by VuPoint or the worker when they entered into the employment contract. As a result, the Bell policy was “an extraordinary response to the extraordinary circumstances accompanying the COVID-19 pandemic,” said the court, adding that VuPoint had no control over the policy’s implementation that prevented the worker from performing work.
Notice of termination
The appeal court also disagreed with the worker’s claim that he hadn’t received a clear warning of the consequences of his vaccine refusal, as the two-week notice gave him at least that much time. There was also evidence that the worker knew well before then that he wouldn’t be able to work because of his refusal, because he began looking for work shortly after being advised of the policy earlier in September, the court said.
The court added that when there is frustration, there is an “immediate discharge of the obligations of the contract” and there was no legal requirement for advance notice.
With the worker communicating his intention to not get vaccinated and no indication of how long the worker would be unable to work on Bell projects, it was reasonable for VuPoint to conclude that there was a radical alteration of the employment contract, said the Court of Appeal in dismissing the worker’s appeal.
