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Mandatory Vaccine Policies in Ontario
Are Mandatory Vaccine Policies Constructive Dismissal

Are Mandatory Vaccine Policies Constructive Dismissal

When Ontario’s last pandemic hit over 100 years ago, workplace law was in a very different state. So, when the COVID-19 pandemic first hit Ontario in March 2020, employers were forced to make difficult decisions about workplace safety without the benefit of prior knowledge.

One means to address safety following COVID-19 lockdowns was the implementation of a mandatory vaccine policy (or “MVP“) by many workplaces in late 2021. As vaccines seemed likely to protect Ontarians, and there were sweeping requirements to show proof of vaccination to enter most premises, many Ontario employees were issued a direction by their employers: get vaccinated by a certain date, or your job or ability to return to work may be in jeopardy.

What happened to employees who didn’t follow their employer’s MVP? Would the law allow them to lose their jobs, or could they claim constructive dismissal because they refused to follow this new type of policy? While there have been several arbitration decisions in similar cases the last few months, the BC Superior Court has just heard the first civil case on MVPs, and the verdict is in.

The Facts

In Parmar v. Tribe Management Inc. (2022 BCSC 1675), Ms. Parmar had worked in a senior level financial role for Tribe and its predecessor, Gateway, for nearly two decades. The company provided condominium management services for many condominiums in the region, and Ms. Parmar oversaw a staff of 20 and had full signing authority. 

When the pandemic began, Gateway had antiquated infrastructure and was not well equipped for remote work. While the company’s services were deemed essential under government lockdown regulations, Ms. Parmar was able to work mostly from home, and only came into work on off hours as needed to sign cheques. 

Once the COVID situation improved, the employer re-opened the office at the end of June 2021 and welcomed all employees to return. Around this same time Gateway was purchased by Tribe, and Ms. Parmar signed a new employment contract which confirmed in part that she would follow all workplace policies.  

In the Fall of 2021, based on guidance they had received from public health organizations including the Center for Disease Control, Tribe implemented an MVP that required all employees to be vaccinated by November 24, 2021. While 35 employees were unvaccinated when the policy launched, all but 2 employees complied by the deadline. 

Ms. Parmar, however, did not. She had been concerned by what she believed were adverse reactions to the COVID-19 vaccination within her family and was unwilling to get vaccinated herself. While she offered to work remotely or participate in a frequent testing program to ensure employee safety, Tribe placed her on unpaid leave for a period of three months.

Despite her upcoming promotion to a more senior role, Tribe held firm with their policy, and informed Ms. Parmar that she would be welcome back either once she complied, or once the MVP was no longer in force. Ms. Parmar requested to return to work, or else she would allege that she had been constructively dismissed. When she was informed that her leave was indefinite she resigned and filed a claim for constructive dismissal that same day. 

The Ruling on Constructive Dismissal

The Court used the common test to determine whether a situation is truly constructive dismissal, which requires one to determine if the employer breached an express or implied term of the employment contract and whether such breach substantially altered the essential terms of the contract. The leading case on constructive dismissal involved a similar unpaid suspension, which was not allowable under that employee’s contract. 

In this case, the Court noted that “the overriding question will be whether the suspension was reasonable and justified.” In other words, was the MVP in this case reasonable? The Court looked at the circumstances surrounding COVID-19 at the time of the policy, as well as the employer’s responsibility for keeping their employees healthy and safe. 

While there have not been previous civil cases involving the COVID-19 vaccines on this issue, the Court analyzed previous arbitration decisions and past tests used to determine reasonableness. They ruled that “Tribe’s MVP was a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information that was then available to it.”

The Court recognized that Ms. Parmar made a difficult choice in following her convictions. However, she did not fit into any policy exemptions for medical or religious purposes, and so she did not warrant her own policy exemption. The Court agreed that “the MVP was not arbitrarily or selectively applied.” She knew the consequences and made her own decision.

Because Ms. Parmar refused to comply with a reasonable workplace policy, she is responsible for any consequences that follow. As the Court said, “any losses that she suffered from being put on unpaid leave were as a result of her personal choice not to follow Tribe’s reasonable MVP.” Her claim for constructive dismissal was dismissed. 

The Takeaway

While this is a British Columbia case, it should serve as a sigh of relief for Ontario employers who battled difficult situations while implementing mandatory vaccine policies. We will need to see how Ontario courts rule in similar circumstances, but this suggests that employers can feel confident about the MVPs that they implemented last year. Under Ontario law employers are also responsible for the health and safety of their workplaces and given the circumstances with COVID the MVPs seemed like an appropriate way to keep workplaces safe. 

The question now though is the future of these policies. While COVID-19 is certainly not ‘over,’ and cases may be once again on the rise, most of the related restrictions have been lifted. Vaccine passports are no longer broadly required, travel restrictions have been lifted, and most employers have now lifted their mask mandates. While the Court here ruled that an MVP was reasonable in 2021, it may not take the same position in 2023. 

That’s why our employment law team stays up to date on the latest legislation, case law, and industry trends. We work to protect employers and employees in the Cambridge, Kitchener, and Waterloo regions, and help them make educated and informed decisions as we continue to navigate this new world. Contact us today to set up a consultation and learn more about how we can help.