BC Supreme Court Weighs in on Mandatory COVID-19 Vaccination Policies

On September 27, 2022, the BC Supreme Court released its decision in Parmar v. Tribe Management Inc., 2022 BCSC 1675 (“Parmar”). This is the first time the BC Supreme Court has directly weighed in on the validity of mandatory COVID-19 vaccination policies in non-unionized workplaces and was a much-awaited decision for many employers and employees in British Columbia who are involved in similar litigation.

The central issue before the Court in Parmar was whether an employer’s decision to place an unvaccinated employee on an unpaid leave of absence pursuant to its mandatory COVID-19 vaccination policy amounted to a constructive dismissal. Helpfully for employers in BC, the Court found that it was not a constructive dismissal, and that Ms. Parmar had in fact repudiated the employment contract. As such, she was not entitled to any damages, and her claim was dismissed.

Facts

Ms. Parmar was initially hired by Gateway Property Management as an executive assistant in 2003. She received regular promotions and eventually acquired a senior management position as Controller, Client Accounting.

In July 2021, Tribe Management Inc. acquired Gateway, and Ms. Parmar continued working with Tribe in the same role. Both Tribe and Gateway were in the business of providing condominium management services to strata boards and councils.

In September 2021, like many employers at the time across Canada, Tribe’s upper management considered whether to introduce a mandatory vaccination policy (the “MVP”) in response to the COVID-19 pandemic. Senior management reviewed various materials and information then available to them, including the various public health orders in place at the time (e.g. the vaccine passport that was required for attending restaurants, bars and events), and the fact that both the federal government and provincial government were implementing MVPs for certain employees. In addition, some of Tribe’s clients had advised that they would only allow vaccinated people on their properties.

On October 5, 2021, Tribe implemented its MVP, which required employees to be fully vaccinated against COVID-19. The Court’s decision did not provide the definition of “fully vaccinated” under Tribe’s MVP, but noted that the MVP included exemptions on religious and medical grounds. Unvaccinated employees without an exemption would be placed on an unpaid leave of absence for failing to comply with the MVP, without discipline or dismissal.

Ms. Parmar objected to being vaccinated based on her own personal concerns regarding the safety of the vaccines, and proposed various alternative arrangements such as working exclusively from home and testing. Tribe refused to make any exceptions to the MVP except for human rights accommodations, and ultimately placed Ms. Parmar on an unpaid leave of absence.

On January 26, 2022, Ms. Parmar emailed Tribe advising that she considered herself constructively dismissed from her employment. She commenced her civil claim on the same day.

Decision

In determining whether the Plaintiff had been constructively dismissed, the BC Supreme Court considered whether the administrative leave of absence was “reasonable and justified” in all of the circumstances.

The Court considered various factors, including the duration of the unpaid leave of absence, whether someone was appointed to replace Ms. Parmar, whether she was asked to return company property, whether she continued to receive employee benefits, and whether there was evidence of an intention to terminate the employment relationship. All of these factors pointed towards a continued relationship between Tribe and Ms. Parmar, had she become vaccinated.

Above all, however, the Court held that the focus must be on whether Tribe had bona fide reasons for the MVP. Importantly, the Court assessed Tribe’s decisions based on the information that was available to Tribe at the time of implementation, meaning that later developments and changes in the COVID-19 pandemic were not relevant.

Ultimately, the Court concluded that Tribe’s MVP was carefully considered, reasonable, and a lawful response to the COVID-19 pandemic based on the information that was then available and reviewed by Tribe. The Court found that the MVP struck an appropriate balance between Tribe’s business interests, including its health and safety obligations, and the interests of Tribe’s clients and employees, as the MVP ensured that those employees who did not get vaccinated would not be disciplined or dismissed.

In arriving at this conclusion, the Court accepted that, while Ms. Parmar was entitled to her beliefs, she was not entitled to impact other employees or Tribe’s clients. As such, the MVP did not represent an intrusion on bodily integrity against an employee’s wishes, but instead required a choice between becoming vaccinated or remaining unvaccinated and losing income.  The Court noted several times that the majority of Tribe’s employees had seen fit to become vaccinated in compliance with the MVP.

Further, the Court also relied on a recent court decision from Alberta where an employee’s constructive dismissal claim for failing to comply with a mandatory masking policy was similarly dismissed: Benke v. Loblaws Companies Limited, 2022 ABQB 461. In that case, the Court held that an unpaid leave of absence did not constitute a substantial change to the employment relationship and a constructive dismissal. Given that the employee could not work by reason of a voluntary choice to not wear a mask, the Court ruled that it was reasonable for the employer to not pay him.

Thus, the Court in Parmar concluded:

A reasonable employee in Ms. Parmar’s shoes would not have felt in all the circumstances that 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.

In the face of Tribe’s reasonable MVP, Ms. Parmer made that choice. She was not constructively dismissed. Her constructive dismissal claim is dismissed.

Takeaways

This is an important decision because it involves a very common factual background for many businesses in BC and throughout Canada, who are currently involved in litigation regarding their own mandatory COVID-19 vaccination policies. This decision illustrates the key considerations in assessing whether an employer’s mandatory COVID-19 vaccination policy is reasonable and justified. In its assessment, the Court will carefully consider what information was available to and reviewed by the employer at the time that it decided to introduce a mandatory COVID-19 vaccination policy, the workplace circumstances at the time, and whether there was an intention to continue or terminate the employment relationship.

While every effort has been made to ensure accuracy in this update, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The document is for general information purposes only and does not constitute legal advice.