Case information

Contracts — Frustration — Mandatory vaccination policies — Employer’s primary client imposed mandatory vaccination policy for technicians working on its projects — Employer imposed mandatory vaccination policy on its employees — Employee failed to provide proof of vaccination to employer — Whether frustration can arise from voluntary or self-imposed circumstances — Whether parties must resort to existing contractual mechanisms that might address voluntary or self-imposed circumstance before invoking doctrine of frustration.

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From 2014 until 2021, Mr. Croke was employed by VuPoint Systems Ltd. as a technician. Almost all of VuPoint’s income came from Bell Canada and Bell ExpressVu (collectively, “Bell”), and Mr. Croke’s work was entirely for Bell. In 2021, Bell implemented a mandatory vaccination policy which required all technicians working on Bell projects to be vaccinated against COVID-19. The policy provided no alternatives to vaccination, and reserved the right to audit compliance. VuPoint informed its technicians, including Mr. Croke, of the Bell policy and implemented its own mandatory vaccination policy, requiring its installers to be vaccinated and to provide VuPoint with proof of vaccination. The VuPoint policy deemed employees who failed to disclose their vaccination status unvaccinated, making them ineligible to provide technical services to Bell customers and at risk of “not receiv[ing] the assignment of any jobs”. Neither policy addressed termination. The VuPoint policy led Mr. Croke to look for alternate employment.

When Mr. Croke declined to disclose his vaccination status, VuPoint gave him two weeks’ notice of termination for failure to comply with the VuPoint policy. During the two week notice period, Mr. Croke refused to comply with the policy and claimed that his termination was discriminatory. He found new employment in March 2022 at a lower rate of pay. He brought an action against VuPoint for wrongful dismissal.

Pollak J. dismissed Mr. Croke’s application for summary judgment and his action, finding that the employment contract had been frustrated by the implementation of Bell’s mandatory vaccination policy. Mr. Croke’s appeal was dismissed.