Placing Employee on Unpaid Leave of Absence for Non-compliance with Mandatory Vaccination Policy Not Constructive Dismissal According to first Canadian Court to Rule on Issue
The British Columbia Supreme Court ruled in Parmar v. Tribe Management Inc. that the employer’s mandatory vaccination policy “was a lawful response to the uncertainty created by the COVID-19 pandemic”.
The Issue: Was an employer entitled to place an employee on an unpaid leave of absence in late 2021 for failing to comply with its mandatory vaccination policy (“MVP”)?
Until late September 2022 labour arbitrators had reached various conclusions on the enforceability of MVPs related to COVID-19 vaccines in the unionized workplace context, but no Canadian court had yet to rule on the same issue in a non-unionized (civil) employment dispute.
This was a problem since there have been a huge number of wrongful dismissal civil actions in late 2021 and 2022 brought by employees against their former employers in light of suspension or termination of their employment due to alleged non-compliance with an MVP. In these actions, judges can take into account the decisions of labour arbitrators, but they are not binding on the court.
As a mediator and arbitrator of civil wrongful dismissal actions in Ontario, the lack of a court decision on point makes settling many of these cases challenging. With the release of the British Columbia Supreme Court decision in Parmar v. Tribe Management Inc., 2022 BCSC 1675 on September 26, 2022, there is now some guidance as to how a court in Ontario may in the future rule on the issue of whether placing an employee on an unpaid leave (suspension) due to non-compliance with a MVP amounts to constructive dismissal. The B.C. Supreme Court answered “no”.
I waited to blog about this decision for a few weeks because I wanted to absorb and consider the ruling, but also because, part of me was sure that an Ontario decision would be released soon. However, as of the timing of writing, that is not the “case” (pardon the pun): there is no such court decision of which I am aware.
45-minute average read: If you are interested in knowing more about Parmar, please read “The Fine Print” section below. Or feel free to scan the sections highlighted in yellow for the essentials—and join me at the end of this blog for “What You Must Know”.
THE FINE PRINT
Author’s note: All quotations in this section are from the B.C. Supreme Court’s decision in Parmar. All highlights are mine.
The Nature of Tribe’s Business
“[12] Tribe’s head office is in Vancouver, and it operates regional offices throughout British Columbia (“BC”) with satellite offices in Alberta and Ontario. Tribe provides condominium management services to strata boards and councils. Those services include financial and information management, community/amenity management, and building maintenance. Tribe also provides rental management services to both full rental buildings and individual units. After its acquisition of Gateway Property Management (“Gateway”), Tribe has approximately 220 employees and provides services to strata corporations collectively comprising 40,000 strata units, housing approximately 100,000 residents…
Ms. Parmar’s Employment History
[14] Ms. Parmar is an accounting professional with approximately 19 years of experience in property management. She worked with Gateway until it was acquired by Tribe, a former competitor, in the summer of 2021.
[15] Ms. Parmar was initially hired by Gateway as an executive assistant in or about 2003. During her employment with Gateway, she was regularly promoted and, when Tribe acquired Gateway, she occupied a senior management position as Controller, Client Accounting. In that position, she was generally responsible for all aspects of Gateway’s accounting, including accounts payable and receivable. She had signing authority over Gateway’s accounts. She managed an accounting staff of approximately 20 people and, as needed, was involved in recruiting, disciplining, and dismissing members of her team.
[16] There is no issue about Ms. Parmar’s competence or reliability. She was a valued employee throughout her tenure with Gateway and latterly with Tribe. Tribe did not want her to leave, and there is no suggestion that implementing the MVP was a pretext for ending Ms. Parmar’s employment relationship with Tribe….
Tribe’s Acquisition of Gateway
[18] In or about July 2021, Gateway was sold to Tribe. Tribe continued Gateway’s operations until the two businesses could be integrated.
[19] Shortly after the sale, Tribe offered new written employment contracts to Gateway’s employees, including Ms. Parmar. Ms. Parmar was provided with a draft employment agreement on July 26, 2021, and signed it on July 31, accepting the terms and conditions of employment set out in the letter.
[20] In brief, in exchange for a $10,000 signing bonus and eligibility for stock options in Tribe (a publicly traded company), Ms. Parmar agreed, to take effect on August 1, 2021, that:
….c) she was required to comply with all policies “as amended from time to time by Tribe in its discretion” …
The COVID-19 Pandemic
[21] On March 16, 2020, British Columbia declared a provincial state of emergency in respect of the COVID-19 pandemic.
…while Ms. Parmar was able to work from home, she was also required to attend at the office.
[31] There is no dispute that Ms. Parmar was responsible for signing cheques and interacting with colleagues and other staff who, in turn, needed to interact with Ms. Parmar to satisfactorily perform their jobs. Many of Ms. Parmar’s duties were curtailed leading up to June 2021 as about half of the accounting team was working…
[34] By mid-June 2021, just prior to the completion of Tribe’s acquisition of Gateway, and about when it was expected that vaccines would become readily available, Ms. McMahon says that the circumstances of the pandemic changed to an extent that permitted Gateway/Tribe to reopen their offices. On June 18, 2021, she sent an email to all staff, including Ms. Parmar, advising that Tribe was reopening its BC offices effective June 23, 2021. Ms. Parmar returned to the office and worked there between June 23 and November 30, 2021.
[35] There is no dispute that Ms. Parmar carefully observed or exceeded all of the public health requirements while she was in the Tribe office.
[36] Ms. Parmar says that in or about August 2021, she was informed that she would be moved into a newly created role, that of Controller-Financial Accounting…
[37] …. Ms. Parmar said that her new role created less risk of COVID-19 transition as her number of direct reports would be reduced to two and she could manage them from home and through video meetings. In her new role, she would no longer be required to attend the office to sign cheques.
[38] I accept that Tribe intended to transition Ms. Parmar into her new role. However, due to the timing of the implementation of the MVP and Ms. Parmar’s decision not to be vaccinated, it is apparent that she never fully completed the transition.
Tribe’s Implementation of the MVP
[39] Ms. McMahon [, the VP of Human Resources,] says that, in late 2020, as vaccines became more readily available, she was aware that several employers were implementing policies requiring employees to be vaccinated and to demonstrate proof thereof as a condition of continued employment. In the summer of 2021, and over more than two months, she was part of a small group of Tribe employees who discussed and considered implementing an MVP for Tribe staff…
[44] In addition to the publicly available information that Ms. McMahon was reading, hearing, and collecting throughout the pandemic, she was in constant and ongoing contact with human resource professionals across Canada. She came to understand that, at this time, MVPs were being implemented with increasing frequency by employers across Canada.
[45] Based on the information available to her, Ms. McMahon concluded that an MVP was both a reasonable and necessary measure to address the pandemic and the risks associated with COVID-19, as she understood them…
[48] …While most employees who were infected recovered without incident, one senior accounting employee, a relatively young man, was seriously ill. He was in intensive care, and dependent on a ventilator for several weeks. His illness caused significant anxiety in the workplace. While he recovered, he was off work for about four and a half months before gradually returning to work.
[49] Certain employees disclosed that they had compromised immune systems, including one who had recently undergone cancer treatment and expressed reservations about working with unvaccinated colleagues. Another employee’s mother died in hospital, and he was unable to see her before she died.
[50] Several of Tribe’s clients asked whether it had, or was going to, implement an MVP. Some of those clients advised that they would require employees, who attended at their strata properties to perform their duties, to be vaccinated. Although, arguably, Tribe could have implemented a policy that required only its property management employees to be vaccinated, that did not appear to be workable due to the integration of those employees with administrative employees.
[51] Ms. McMahon says that all of the available information, and Tribe’s employees’ experiences, led her to decide that an MVP was reasonable and appropriate. She drafted, and [CEO,] Mr. Nakhla approved, an MVP to apply to all Tribe employees.
[52] In his affidavit, Mr. Nakhla said that he approved the policy and was ultimately responsible for its terms and implementation. He continues to believe that the MVP was an appropriate response to the uncertain and ever-changing COVID-19 situation which “was unlike anything I had ever experienced in terms of its effect on our business and more importantly, … on the health of our staff and their families”.
[53] The MVP was distributed to all Tribe employees on October 5, 2021, attached to an email from Ms. McMahon. Her email said:
With the ever-changing landscape of COVID-19 and the steps being taken to ensure an end to the pandemic, many agencies and businesses in both the public and private sectors across the country have implemented or will be implementing a Vaccination Policy. In line with our company’s commitment to the protection of the health and safety of our employees, we are implementing a Mandatory Vaccination Policy.
The policy is attached and you will need to review asap. There are deadlines included that must be adhered to.
[Emphasis in original.]
[54] The attached MVP explained the reason for the implementation of the MVP and the basis for it:
The health and safety of our employees, clients and communities is a priority. Tribe … is committed to taking every precaution reasonable for the protection of the health and safety of our employees from COVID-19. Vaccination has proved to be a key element in not only protection against COVID-19, but also in the reduction of the transmission of the virus. Therefore, Tribe has adopted a mandatory COVID-19 Vaccination Policy.
This policy is based on guidance from the Centres for Disease Control and Prevention (CDC), the provincial Public Health Offices (PHO) and all applicable provincial health orders.
[55] The MVP applied to all employees and required them to become “fully vaccinated” by November 24, 2021.
[56] The MVP provided for medical or religious exemptions and allowed for extra time for those employees who were unable to meet the deadline. It also contemplated that the policy could be modified:
Governmental and public health guidelines and restrictions and industry best practices regarding COVID-19 vaccines are changing as new information becomes available, further research is conducted, and additional vaccines are approved and distributed. Tribe reserves the right to modify this policy at any time at its sole discretion to adapt to changing circumstances and business needs, consistent with its commitment to maintaining a safe and healthy workplace.
[57] With the exception of Ms. Parmar and one other employee, all of Tribe’s more than 200 employees complied.
[58] Ms. McMahon says that concurrent with introducing the MVP, Tribe also implemented a hybrid work model to allow employees to work partly in the office and partly from home. The model was not intended as a COVID-19 mitigation strategy, but as a recruitment and retention tool as employees were increasingly expecting to be able to work remotely at least some of the time. The model did not allow employees to work entirely from home but allowed employees to work remotely “half time”—two days one week and three days the next. The model was not an alternative to vaccination, as no one was permitted to work entirely remotely. Employees who opted to work in accordance with the model were required to enter an agreement as to its terms.
Ms. Parmar’s Objection to the MVP
[59] Ms. Parmar made her objection to being vaccinated known to Ms. McMahon and others.
[60] Ms. Parmar is not an anti-vaxxer. Instead, she says that she had been reviewing the literature and news about the efficacy and potential risks of the various available vaccines and she observed several family members experience severe health complications following their first and second vaccines…
[65] Ms. Parmar says that she is concerned that the vaccines were prepared and distributed hastily and that there is limited data about their long-term efficacy and potential negative health implications for certain individuals. She was hesitant to get vaccinated for fear of negative side effects…
[67] The MVP exempted employees who did not wish to be vaccinated on either religious or medical grounds. Ms. Parmar did not seek an exemption on those grounds, and Ms. McMahon says that, to her knowledge, neither Ms. Parmar’s faith nor her medical status would have prevented her from being vaccinated. This was not disputed by Ms. Parmar.
[68] For those employees who, for personal reasons, wished to remain unvaccinated, the MVP accommodated those wishes. Instead of being dismissed or disciplined, Tribe’s Chief Executive Officer required that they be placed on an unpaid leave of absence.
[69] On October 12, 2021, Ms. Parmar met with Ms. McMahon and [VP, Finance Services,] Mr. Axenty and told them why she was not prepared to get vaccinated. She explained her family’s health history including heart issues on her father’s side and autoimmune issues on her mother’s side, her mother’s negative experiences with doctors and specialists providing inaccurate information, and the negative health impacts that her family experienced as a result of vaccinations. Nonetheless, Ms. Parmar’s family members were vaccinated.
[70] Ms. Parmar proposed various alternatives, such as: working exclusively from home, or in a hybrid arrangement, with strictly controlled in-person office visits to sign cheques; that she would continue to strictly adhere to other safety protocols; and that she was willing to undergo rapid testing on each day she was required to attend at the office.
[71] Ms. Parmar was advised that there would be no exceptions to the MVP.
[72] Ms. Parmar, Ms. McMahon, and Mr. Axenty met again on October 20, 2021, and Ms. Parmar suggested rapid testing as an option. She was told that it was not an option. Ms. McMahon and Mr. Axenty asked Ms. Parmar to give Tribe’s management until November 30, 2021, to give her an answer. Ms. Parmar said that she did not think anything would change with respect to her opposition to vaccination. On October 22, 2021, Ms. McMahon asked Ms. Parmar whether she had decided to give management until November 30, 2021, and Ms. Parmar agreed on the understanding that Tribe was looking into rapid testing.
[73] On November 9, 2021, Mr. Axenty sent Ms. Parmar a news article about the safety of vaccines and followed up with her on November 22, 2021. She told him that the article had not changed her mind.
[74] A formal announcement about Ms. Parmar’s transition to her position was sent out on November 18, 2021…
[75] On November 25, 2021, Ms. McMahon met with Ms. Parmar and told her that, because she had not complied with the MVP, she would be put on an unpaid leave of absence from December 1, 2021, to February 28, 2022 (the “Leave”).
[76] Ms. Parmar was given a letter dated November 24, 2021, confirming the Leave. The letter confirmed that Tribe would continue to fund Ms. Parmar’s participation in Tribe’s benefit plans with the exception of employee-paid benefits, the options for which would be discussed. The letter said:
The decision to impose a leave of absence arises primarily from our legal responsibility as an employer to provide all employees with a healthy and safe workplace. It is our hope that you will use this time as an opportunity to seek as much information and advice as possible regarding the safety and efficacy of the COVID-19 vaccine.
If at any time during the period, you would like to discuss our position or should your decision on receiving the vaccine change, please contact me immediately. If we have not heard from you by mid-February, 2022, I will be in touch to discuss next steps.
[77] On November 29, 2021, Ms. Parmar emailed Ms. McMahon asking for clarification on how the Leave would be implemented and what would happen at the end of the three months.
[78] On November 30, 2021, Ms. McMahon sent a company-wide email advising staff that Ms. Parmar, and one other employee, had been placed on three-month unpaid leaves related to the MVP.
[79] On the same day, Ms. McMahon emailed Ms. Parmar providing her with information about the employee-paid benefits premiums and asking for a return of her company cell phone and her security pass for the duration of the Leave. Ms. Parmar responded on December 1, 202, and asked whether she could buy out the cell phone.
[80] On December 9, 2021, Ms. McMahon responded that buying out the company phone appeared to be premature as Ms. Parmar was still an employee…
Ms. McMahon asked that they reconnect in mid-February to review the situation at that time.
[81] Although Ms. Parmar submitted that her Leave was, in effect, indefinite, the MVP provided that it would be reviewed ongoingly, and Ms. McMahon wrote that Ms. Parmar’s situation would be reviewed in mid-February.
[82] On December 15, 2021, Ms. Parmar sent Mr. Axenty and Ms. McMahon an email attaching a letter requesting to return to work within one week, or she would allege constructive dismissal. She outlined what she saw as some of the safety mitigation measures that could allow her to continue working, including willingness to undergo regular rapid testing, at her expense, if she needed to attend at the office…
[85] On January 25, 2022, after some discussion with Ms. Parmar’s counsel, counsel for Tribe advised that it would be extending Ms. Parmar’s Leave indefinitely but expressed Tribe’s hope that she would return to work as soon as possible after complying with the MVP.
[86] On January 26, 2022, Ms. Parmar emailed Ms. McMahon advising that she was resigning and considered herself constructively dismissed from her employment. The notice of civil claim was filed that day.
[87] After resigning, Ms. Parmar was successful in obtaining alternate employment effective April 11, 2022, as a senior accounting manager with Devon Properties Ltd., another property management company. She negotiated a higher compensation package than that she received from either Gateway or Tribe.
ANALYSIS
[88] Ms. Parmar’s employment contract with Tribe expressly provided that she would comply with all of its policies, as amended from time to time at Tribe’s discretion. That provision allowed Tribe to implement and amend workplace policies and obliged Ms. Parmar to comply with them. Tribe’s right to implement policies was only subject to the implied qualification that any such policy would be reasonable and lawful.
[89] In this case, Ms. Parmar does not argue that the MVP was unlawful. Instead, she argues that it was unreasonable to the extent that it did not make an exception for employees who were able to work from home either entirely or almost entirely. I accept that the MVP was not legally required but it was permitted by law.
The Law on Constructive Dismissal
[90] An employer’s right to implement administrative leaves of absence was canvassed by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10…..
[92] In Potter at para. 32, the Court explained that the test for constructive dismissal has two branches. The first applies where there has been a single act by the employer that may breach an essential term of the employment contract: Potter at para. 34. The second is where the employer has taken a series of steps that, considered together, made continued employment intolerable and demonstrate that the employer no longer intends to be bound by the terms of the employment contract: Potter at para. 33. It is the first form of constructive dismissal that is applicable here.
[93] The first branch involves considering two steps. In the first step, the court must identify an express or implied contract term that has been unilaterally changed. This involves an objective analysis. Once it has been objectively established that a breach has occurred, the court turns to the second step and asks whether, when the breach occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed: Potter at paras. 34–39, citing Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 at para. 26, 1997 CanLII 387. Each case is intensely fact specific.
[94] As the Supreme Court explained in Potter:
[41] The uniqueness of the application of this first branch of the test is evident in cases involving administrative suspensions. In all cases, the primary burden will be on the employee to establish constructive dismissal, but where an administrative suspension is at issue, the burden will necessarily shift to the employer, which must then show that the suspension is justified. If the employer cannot do so, a breach will have been established, and the burden will shift back to the employee at the second step of the analysis.
[Emphasis added.]
[95] Courts have recognized that a suspension without pay breaches the employment contract unless there is an express or implied term of the contract permitting it. Suspensions may be administrative or disciplinary. This case involves an administrative suspension, not a disciplinary one, related to Ms. Parmar’s conduct.
[96] In determining whether a unilateral suspension constitutes a fundamental or substantial change to an employment contract, courts have considered the following factors outlined in Devlin v. NEMI Northern Energy & Mining Inc., 2010 BCSC 1822 at para. 50:
a. The duration of the suspension;
b. Whether someone was appointed to replace the suspended employee;
c. Whether the employee was asked for their keys;
d. Whether the employee continued to be paid and receive benefits;
e. Whether there is evidence that the employer intended to terminate the employee at that time; and
f. Whether the employer suspended the employee in good faith, for example, for bona fide business reasons.
[97] There is a concern that the use of the term “suspension” connotes a disciplinary process. In fact, many of the cases involve a suspension during a disciplinary investigation or following a criminal charge. For that reason, I prefer the term “unpaid leave of absence”.
Reasonableness of Tribe’s MVP
[98] Applying the Devlin factors to the evidence in this case: Ms. Parmar’s leave was for a period of three months and was subject to review; she was not replaced; she was asked to return some Tribe property; she continued to receive certain employee benefits; and Tribe did not intend to terminate her employment, as she was expected to fulfill a new role and was a valued employee.
[99] The focus is on whether Tribe had bona fide business reasons, including safety reasons, for the MVP and for placing Ms. Parmar on an unpaid leave of absence for failing to comply with it. The issue is not whether the MVP was a perfect policy, but whether it was a reasonable approach when implemented, given the uncertainties then presented by the pandemic….
[101] The assessment of the reasonableness of Tribe’s MVP must be considered based on the state of knowledge about COVID-19 at the time it was implemented. Approaches to managing the pandemic have evolved as more information became available and as the effectiveness of vaccines became known.
[102] The MVP must also be considered in light of Tribe’s obligation to protect the health and safety of its employees, its clients, and, by extension, the residents in the buildings to which it provided property management services.
What was Known about COVID-19 in November 2021?
…[105] In addition to various government vaccine mandates, employers in the private sector were strongly encouraged to adopt and implement policies that aligned with government directives.
[106] On September 6, 2021, when announcing the Federal Government’s MVP for civil service employees, Prime Minister Trudeau encouraged private sector employers to follow suit….
Judicial Notice
….[108] In the context of COVID-19, this Court and other courts have taken judicial notice that COVID-19 is a potentially deadly virus that is easily transmissible….
[109] In addition, courts have taken judicial notice of the fact that vaccines work….
[110] I accept that it is appropriate in this case to take judicial notice of those facts.
Application of the KVP Test to MVPs
[111] [In a B.C. labour arbitration decision, an] MVP was subject to what has been generally recognized as the “KVP test”, referring to a decision of Arbitrator Robinson’s decision in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. (1965), 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (O.N.L.A.) (Arbitrator: J.B. Robinson)….
[115] The KVP test requires that any rule or policy unilaterally imposed by an employer, and not subsequently agreed to by the union, must be consistent with the collective agreement and reasonable. The policy must also be clear and unequivocal and brought to the attention of the employees before it is acted upon. The consequences for non-compliance must be set out, and the policy should be consistently enforced.
[116] The KVP test has been repeatedly endorsed by the courts: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at paras. 25–26 and the cases cited therein. The KVP test identified certain factors to be considered in assessing a workplace policy…
[125] The discussion in the arbitral cases is helpful but not binding…
[131] In Ms. Parmar’s notice of civil claim, she does not allege that the implementation of the MVP amounted to a breach of her employment contract with Tribe. Rather, the breach was the consequence that flowed from not following it: the imposition of an unpaid leave.
[132] In implementing the MVP, Tribe was required to balance Ms. Parmar’s personal beliefs as against its interest in ensuring that it protected the health and safety of all other employees in its workplace. Allowing for exemptions would result in selective application of the MVP. As is evident from Ms. Milic’s affidavit, she was reluctant to be vaccinated but elected to make a different choice than Ms. Parmar. Individual views of the appropriateness of Tribe’s MVP do not undermine the reasonableness of the policy, and an employee’s personal belief must give way to the health and safety concerns that form the basis for the MVP.
[133] I accept that Ms. Parmar was faced with a difficult choice. She apparently held strong beliefs about the safety of the vaccine, and it is not my role to question those beliefs. However, in the extraordinary circumstances of the pandemic in the winter of 2021 and January 2022, implementing an MVP was a reasonable policy choice for employers, including Tribe.
[134] 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.
[135] The policy, as drafted, allowed for both medical and religious exemptions, neither of which were then, or are now, asserted by Ms. Parmar. Although Ms. Parmar was critical of Tribe for not conducting a formal risk assessment with respect to its employees and clients and not retaining experts to advise them, there was a lot of information generally available that indicated that vaccines were the best available chance to prevent infections, they were safe, and they were mandated as a requirement for participation in may other aspects of citizens’ lives. Tribe set up a committee to consider its options, and Ms. McMahon, as a member of that committee, was actively involved in gathering and reviewing the available information.
[136] It is not surprising that, until the introduction of the MVP, Tribe’s employment policies did not require its employees to be vaccinated. COVID-19 presented an unprecedented worldwide challenge to governments, health authorities, and providers. It also presented a unique and unanticipated challenge to employers and employees.
[137] The MVP reflected the prevailing approach at the time. It struck an appropriate balance between Tribe’s business interests, the rights of its employees to a safe work environment, its clients’ interests, and the interests of the residents in the properties it serviced. It also satisfied its responsibility as a corporate citizen. At the same time, it ensured that individuals like Ms. Parmar could maintain a principled stance against vaccination without losing their employment by, instead, being put on a leave of absence.
[138] Tribe’s MVP reflected its statutory obligation under s. 21 of the Workers Compensation Act, R.S.B.C. 2019, c. 1 [to ensure the health and safety of workers]…
[139] The policy respected Ms. Parmar’s right to choose to remain unvaccinated by putting her on a three-month leave of absence. She understood, pursuant to the terms of the MVP, that a leave would be the consequence of her decision to remain unvaccinated.
[140] Tribe was consistent in its position that Ms. Parmar could return to her employment upon becoming vaccinated. It did not fill her position and was prepared to extend her leave of absence until its MVP changed as more information became available, or if her vaccination status changed. It was her choice to remain unvaccinated. She opted to resign, and, in the circumstances of this case, that was a voluntary decision.
[141] Under the Tribe MVP, it was clear that it intended to review the policy as information was gathered and more was learned about COVID-19. If the pandemic subsided, Ms. Parmar would have been able to return to productive work with Tribe. No other discipline was contemplated by the MVP.
[142] The MVP was not Gateway’s or Tribe’s first response to COVID-19. Initially, Gateway put in place a series of safety measures to reduce the risk of transmission of COVID-19 in its workplace…
[143] The fact that safe vaccines were becoming more readily available in Canada in the late summer and fall of 2021 changed the landscape yet again.
[144] Ms. Parmar is entitled to hold her beliefs about the COVID-19 vaccination. However, her entitlement to hold her beliefs and to protect her bodily integrity does not entitle her to impact other Tribe employees or, potentially, the thousands of residents in buildings to which Tribe provides property management services.
[145] The strength of her beliefs does not entitle her to take the position that an exception to the MVP should be made for her. This is particularly so in light of her senior management position and the fact that she was the only Tribe employee who refused to comply with the MVP.
[146] On the evidence, the Tribe MVP was carefully considered. It accounted for the interests of Tribe employees, their clients and their client’s employees, residents, and owners. It was reasonable.
[147] The MVP was not arbitrarily or selectively applied. The terms of the MVP, and the consequences of non-compliance, were known to Ms. Parmar. It was applied consistently to her and to the only other employee who failed to become vaccinated by the required date.
[148] While Ms. Parmar’s leave was unpaid and for an unspecified duration, she had the ability to end the leave and return to work for remuneration. In this regard, she was unlike the Executive Director in Potter.
[149] I understand that resuming her employment would have required Ms. Parmar to be vaccinated against COVID-19; she chose not to do so, and Tribe’s MVP respected that right. She was not dismissed or otherwise disciplined for non-compliance with the MVP. She was permitted to exercise her personal autonomy and follow her view. While she was not paid, she did not have any employment responsibilities during her leave….
[152] Ms. Parmar’s refusal to comply with the MVP was a repudiation of her contract of employment. Tribe did not accept that repudiation. Instead, it acted reasonably in putting her on an unpaid leave. She was not constructively dismissed from her position; she resigned. 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.
[153] …because I have taken judicial notice of the fact that vaccines are safe and effective for use in people and with respect to controlling the spread of COVID-19, it was solely Ms. Parmar’s choice not to comply with the MVP. The safety of vaccines is “so notorious as not to be the subject of dispute among reasonable people”: R. v. Williams, [1998] 1 S.C.R. 1128 at 1156, 1998 CanLII 782; see also O.M.S. at paras. 113–114, citing B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438 at para. 188. Various publications by Health Canada and by the BC Ministry of Health and the Provincial Health Officer cannot reasonably be disputed to be inaccurate.
[154] Finally, I accept that it is extraordinary for an employer to enact a workplace policy that impacts an employee’s bodily integrity, but in the context of the extraordinary health challenges posed by the global COVID-19 pandemic, such policies are reasonable. They do not force an employee to be vaccinated. What they do force is a choice between getting vaccinated, and continuing to earn an income, or remaining unvaccinated, and losing their income. Ms. Parmar made her choice based on what appears to have been speculative information about potential risks.
[155] I note that in Maddock v. British Columbia, 2022 BCSC 1065, Chief Justice Hinkson reached a similar conclusion with respect to the requirement for proof of vaccination to restaurants. At para. 78, Hinkson C.J. wrote that such policies ““[do] not compel or prohibit subjection to any form of medical treatment”: para. 78. Rather, individuals remain free to make choices within the bounds of the policy. The MVP did not, in the words of Maddock, “[leave Ms. Parmar] with no reasonable choice but to accept, or effectively accept, non-consensual treatment”: paras. 78–79. Ms. Parmar retained the choice to remain on unpaid leave.
[156] A reasonable employee in Ms. Parmar’s shoes would not have felt in all the circumstances than an unpaid leave as a consequence of failing to comply with the MVP was a substantial alteration of an essential term of the employment contract. This is confirmed by the fact that all but one of her fellow employees complied with the MVP and that most adult Canadians have since been vaccinated—many as a condition of continued employment.
CONCLUSION
[157] In the face of Tribe’s reasonable MVP, Ms. Parmar made that choice. She was not constructively dismissed. Her constructive dismissal claim is dismissed…”
What You Must Know: Key Takeaways
1. The things I find particularly noteworthy about this decision are:
a) There is no evidence – of which I am aware – that the parties expressly agreed to a suspension or leave of absence (paid or unpaid) in their terms of employment.
b) Judicial notice was taken of the COVID-19 pandemic and the safety and efficacy of vaccines.
c) The MVP “reflected the prevailing approach of the time”.
d) While it’s easy to miss – given the length of the reasons and the amount of ground covered – one should not underestimate how important the following passage is: “[87] After resigning, Ms. Parmar was successful in obtaining alternate employment effective April 11, 2022 [roughly, four months later], as a senior accounting manager with…another property management company. She negotiated a higher compensation package than that she received from either Gateway or Tribe.”
In my experience in dealing with terminations/resignations arising out of MVPs in late 2021/early 2022, most affected employees have not been fully re-employed as at the time of writing.
2. A court decision of one province is not binding on a court outside of that province. However, Parmar could be considered “persuasive” by an Ontario judge who might rely on it in a similar case that comes before them. That said, the decision would likely be more persuasive if were from an appeal court, as opposed to a decision from a trial judge (in B.C., the “Supreme Court” is a trial division court, like Ontario’s Superior Court).
3. On that note, I have learned that Ms. Parmar is appealing the decision. It will take some time for the appeal to be heard and for a decision to be released.
4. Some will argue that Parmar turns on its own unique facts and may not be applicable to other constructive dismissal cases involving MVPs.
5. Parmar concerns a claim for constructive dismissal because of an unpaid leave resulting from non-compliance with an MVP. It does not concern a wrongful dismissal claim where the employee was terminated for alleged “just cause” (and willful misconduct under Ontario’s ESA) for failure to comply with an MVP. Some will argue that the reasoning in Parmar does not apply to a just cause/wrongful misconduct scenario as there are different legal considerations. For how Ontario courts decide just cause and wrongful misconduct cases, see the following.
6. While Parmar has been welcomed by Ontario employers and their counsel, for the reasons above, it is important to keep an open mind for now at mediation and pre-trial (and at any point when settlement is contemplated) in determining litigation strategy going forward, the risk and cost of being wrong when the matter reaches a judge, the potential lack of finality, and – as a result – one’s settlement position.
7. Employees and their counsel who have commenced litigation in response to MVPs in late 2021 and early 2022 must recognize that Parmar, coupled with the recent (non-workplace Ontario) decision in Costa v. Seneca College, 2022 ONSC 5111, are setbacks – and may be an early indication of how Ontario judges will rule in employment scenarios. Nevertheless, we have no way of knowing how our Court of Appeal – and possibly the Supreme Court of Canada – will ultimately rule on this issue.
8. Parmar is about a particular time and place. It has little to say about any current workplace MVPs. That said, this pandemic is, unfortunately, not over yet, despite what many people say. Anything can happen. In fact, the only constant since early 2020 (and always) is change.
In the meantime, we await the first Ontario judicial decision. At the time I started this blog, I was going to ask, “which will happen first: An Ontario court decision on an MVP or Liz Truss’ resignation?”. At least that question has been answered.
If you are a lawyer or paralegal looking to hire a mediator or mediator-arbitrator for your employment law dispute, I have been a mediator for over a decade and I recently started to arbitrate disputes. I conduct employment mediations, med-arbs and arbitrations via videoconference, in-person, and in a hybrid format. I regularly deal with pandemic and other non-unionized workplace-related disputes, including mandatory vaccination policies.
This blog is for educational purposes only and is not intended as legal or other professional advice.
