Appellant Alan Croke was a technician with VuPoint, a company that installs residential satellite TV and Internet services for Bell Canada, with whom it does 99 per cent of its business. In 2021, Bell brought in a mandatory COVID-19 vaccination policy, with VuPoint soon following suit. Croke refused to disclose his vaccination status, which was deemed to mean that he was unvaccinated. As a result, he was not eligible to continue working as a technician providing services for Bell customers. VuPoint then terminated Croke’s employment, and he brought a wrongful dismissal action.
The action was dismissed at the trial stage, with Ontario Superior Court Justice Andra Pollak ruling his employment contract was frustrated by the implementation of the Bell policy (Croke v. VuPoint Systems Ltd., 2023 ONSC 1234). That finding was challenged by Croke, who said the lower court should not have applied the doctrine of frustration and, in the alternative, that the application of frustration in this case was incorrect.
But Justice Lorne Sossin, writing on behalf of a unanimous Ontario Court of Appeal, dismissed Croke’s arguments. He noted that frustration occurs when a situation has arisen for which the parties made no provision in the contract and the performance of the contract becomes “a thing radically different from that which was undertaken” by it initially. A party alleging frustration has to establish that there was a “supervening event” that radically altered contractual obligations, was not foreseeable and has not been caused by the parties.
Justice Sossin ruled that frustration was available to the lower court judge, and she was correct in finding the “supervening event” of the Bell policy was not contemplated at the time the contract was written.
“The motion judge accepted VuPoint’s argument that, in 2014, neither the appellant nor the respondent could have foreseen that there would be an unprecedented global pandemic that would cause Bell to implement a new requirement that its installers become vaccinated to prevent the transmission of a new and previously unknown disease,” he wrote. “I agree that the onset of the COVID-19 pandemic, and the extraordinary response from Bell, was an exceptional event that the parties could not reasonably have anticipated years earlier.”
Justice Sossin wrote there was no error in the lower court’s finding that the Bell policy was outside VuPoint’s control, and Croke received a “clear and unambiguous” warning that his vaccination status would result in his termination.
“There was no evidence in the motion record that VuPoint had any control over Bell’s decision to implement the Policy,” he wrote. “The termination of the appellant’s employment was simply the inevitable result of this finding and of VuPoint’s corresponding entitlement to treat the contract as at an end.”
As a result of his findings, Justice Sossin dismissed Croke’s appeal. He was joined by Justices Sarah Pepall and Jonathan Dawe in his ruling (Croke v. VuPoint System Ltd., 2024 ONCA 354).
Michael Lynk
“I suspect there are still some COVID-19 cases that are currently in the court stream, and this decision coming from a respected court like the appellate court in Ontario will go a long way in solidifying the law with respect to this issue,” he said.
Lynk also noted the case is representative of how common law courts will handle frustration of contract due to refusal of a vaccination in a non-unionized circumstance, versus a unionized one.
“There’s been terminations under collective agreements for employees who have refused to disclose their vaccination status — and therefore presumably they are non-vaccinated — by unionized employers,” he said. “Arbitrators have been generally saying that employers must explore other alternatives to termination such as an alternative to demanding that the employee be vaccinated, or they should be preserving the employee’s employment status until vaccination is no longer needed.”
This has resulted in an interesting contrast between employment law and unionized labour law, said Lynk.
“You rarely ever see the doctrine of frustration used in labour law, but it’s still a common doctrine for the courts to rely upon in wrongful dismissal cases in a non-unionized workplace,” he said.
Counsel for both Croke and VuPoint declined to comment for this article.
If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.