Curated Content Canada: Extraordinary Times Call For Extraordinary Measures: Unpaid Leave For Non-Compliance With Mandatory Vaccination Policy Not Constructive Dismissal

With the decision of the British Columbia Supreme Court in Parmar v Tribe Management Inc., 2022 BCSC 1675 ("Parmar"), Canada has its first judicial decision considering whether placing a non-union employee on unpaid leave of absence for failing to comply with a mandatory vaccination policy constitutes a constructive dismissal.

The Background

The plaintiff, Deepk Parmar, was employed by Gateway Property Management as its Controller -Client Accounting when it was acquired by Tribe Management Inc. ("Tribe") in the summer of 2021 during the COVID-19 pandemic.

Around the time of the acquisition, Tribe was exploring the possibility of a mandatory vaccination policy ("MVP") for its employees even though approximately 90% of its employees could work remotely. While Ms. Parmar had been able to work remotely some of the time, she had never been entirely remote. Initially, it asked its employees to disclose their vaccination status, found that 84% were vaccinated, and concluded that the number of unvaccinated was unacceptably high given the risks of COVID-19 as presented or directed by the public health authorities and governments at that time. While Tribe could have implemented an MVP that only applied to its property management employees, this was seen as unworkable due to the integration of those employees with the administrative employees.

Ultimately, on October 5, 2021, Tribe introduced its MVP (which contemplated exemptions for religious and medical grounds), requiring all its employees to be fully vaccinated by November 24, 2021, and all but Ms. Parmar and one other employee complied.

Ms. Parmar's refusal to get vaccinated was not due to religious or medical grounds but rather due to her concerns that "the vaccines had been prepared and distributed hastily", and that there was "limited data about their long-term efficacy and potential negative health implications". She also claimed that she had observed several family members and an acquaintance experience health complications after getting the vaccine. As an alternative to the MVP, Ms. Parmar proposed that she work from home, with strictly controlled in-person office visits to sign cheques, that she would follow all other safety protocols and would submit to rapid testing when she had to go into the office. Tribe rejected these proposals and Ms. Parmar was placed on an unpaid leave of absence.

The Decision

Although Ms. Parmar's leave was initially set for a period of three months, the MVP stated that it would be subject to ongoing review and subsequently it was made indefinite, subject to a change in either the MVP or Ms. Parmar's vaccination status. On January 26, 2022, one day after being informed that her leave was being extended indefinitely, Ms. Parmar advised Tribe that she was resigning, taking the position that she had been constructively dismissed and therefore entitled to pay in lieu of notice. Tribe did not agree, Ms. Parmar immediately commenced legal proceedings, and the matter was heard by the Court in July 2022.

The Court concluded that Ms. Parmar had not been constructively dismissed when she was placed on an unpaid leave for failing to comply with the MVP. The Court noted that her employment agreement with Tribe required her to comply with all policies of Tribe, as amended from time to time by Tribe in its discretion (subject to the implied qualification that such policies were reasonable and lawful), and that Ms. Parmar's refusal to comply with the MVP was a repudiation of that agreement. Rather than accepting this repudiation, Tribe chose to put Ms. Parmar on an unpaid leave of absence until either the MVP or her vaccination status changed.

In determining that Ms. Parmar was not constructively dismissed, the Court first had to consider whether the unpaid leave, and by extension the MVP, was justified. While taking note of Ms. Parmar's right to her personal beliefs and bodily autonomy, the Court upheld the validity and enforceability of the MVP, stating that, while it was an extraordinary response, it did not need to be perfect, and was reasonable given the extraordinary challenges posed by the COVID-19 pandemic. Specifically, the Court held that the MVP struck an appropriate balance between business interests, employee rights, the interest of Tribe's clients, and the larger community, based on the following factors:

• The dangers of COVID-19 (including potentially severe and deadly outcomes and the ease of transmission) and the efficacy of vaccines in reducing the severity of symptoms and severe outcomes, which the Court took judicial notice of, as well as what was known about COVID-19 at the time that the MVP was implemented;
• Tribe's obligations to protect the health and safety of its employees, clients and the residents of the buildings it provided property management to;
• It was contemplated that the MVP could be modified as more was learned about COVID-19 and the unpaid leave itself was subject to ongoing review;
• The MVP allowed for religious and medical exemptions;
• The terms of the MVP and the consequences of non-compliance were clearly communicated; and
• The MVP was not selectively or arbitrarily applied, but applied to all employees of Tribe, subject to medical and religious exemptions.

In its analysis of the MVP, the Court found that personal beliefs about vaccinations, even those which are strongly held, do not undermine the reasonableness of the MVP and that such personal beliefs must give way to health and safety concerns. The Court also noted that:

• the MVP did not force vaccination, rather it forced employees to choose between vaccination and remaining unvaccinated and losing their income;
• while Ms. Parmar was critical of Tribe for not conducting a formal risk assessment or retaining experts to advise them, the Court noted that 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 many other aspects of citizen's lives";
• the MVP did not contemplate or provide for any discipline beyond the unpaid leave of absence and, if the pandemic subsided Ms. Parmar would have been able to return to work; and
• while it was extraordinary for employers to implement a policy that impacted bodily integrity, such policies were reasonable in the context of the extraordinary health challenges posed by the COVID-19 pandemic.

The Takeaways

Parmar is welcome news for employers that implemented mandatory vaccination polices and have faced challenges for doing so. It builds on the largely helpful arbitral decisions in the unionized context as well as cases such as Benke v. Loblaw Companies Limited (see our blog here) and Lewis v. Alberta Health Services in which mask and vaccination requirements were upheld. The Court's willingness to take judicial notice of a number of facts about the COVID-19 pandemic, coupled with its finding that Ms. Parmar's failure to comply with the MVP amounted to a repudiation of the employment contract may bode well for employers facing similar challenges. However, as the Court expressly noted, each case must be decided on its own facts, in light of the state of knowledge regarding COVID-19 at the time of implementing the MVP.

On October 17, 2022 Ms. Parmar filed an appeal of the Court's decision. We will keep readers apprised of further developments.

The authors would like to acknowledge the assistance of Coltyn Hermanin the preparation of this blog.

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