Nick Goldhawk

This appeal concerned the application of the doctrine of frustration to an employment contract terminated due to the employee's COVID-19 vaccination status.

The appellant, a technician for VuPoint Systems Ltd., was terminated after refusing to comply with a mandatory vaccination policy implemented by Bell Canada, VuPoint's dominant client, which rendered him ineligible to perform his duties.

The motion judge found the contract frustrated.

The Court of Appeal dismissed the appeal, affirming that the Bell Policy was a supervening event that radically altered the employment contract, was unforeseen at the time of contracting, and was outside VuPoint's control.

The Court clarified that the employee's voluntary refusal to vaccinate did not negate frustration, as the supervening event was the policy itself, not the employee's conduct.

In this wrongful dismissal action, both parties brought motions.

The plaintiff sought leave to amend his statement of claim to include a claim for 2.5% of gross profits and to plead bad faith litigation conduct for moral damages, and also sought further document production.

The defendants brought a cross-motion to compel the plaintiff to authorize his former counsel to deliver a file from a prior wrongful dismissal claim.

The court granted the plaintiff leave to amend his pleading, affirming that bad faith litigation conduct can support a claim for moral damages in the employment context.

However, the plaintiff's request for division-specific gross profit documents was dismissed as irrelevant to his pleaded claim for company-wide gross profit and due to the defendants' assertion of no further documents.

The plaintiff's request for a further and better affidavit of documents was partially granted, requiring the defendants to provide an unaltered bonus plan (with redacted employee names) and a Schedule C for purged documents.

The defendants' cross-motion for the former counsel's file was dismissed, primarily due to lack of relevance (as similar fact evidence was not pleaded) and solicitor-client privilege.

Due to mixed success, each party was ordered to bear their own costs.

The plaintiff, a systems technician, brought a motion for summary judgment against his former employer for wrongful dismissal, aggravated, punitive, and/or moral damages.

The plaintiff was terminated after refusing to comply with a mandatory COVID-19 vaccination policy implemented by the employer's primary client, Bell, which accounted for over 99% of the employer's business.

The employer argued that the employment contract was frustrated due to the plaintiff's inability to perform essential duties.

The court found that Bell's vaccination policy was an unforeseen supervening event beyond the parties' control, leading to a radical change in the employment contract.

The plaintiff's motion for summary judgment was denied, and the action was dismissed, as the employment contract was deemed frustrated, negating any entitlement to common law reasonable notice.