Ref: Parmar v Tribe Management Inc., 2022 BCSC 1675

A recent decision of the British Colombia Supreme Court will come as good news to employers in the province and around the country, upholding the employer’s Mandatory Vaccination Policy (“MVP”) and dismissing the plaintiff employee’s claim in a summary trial.

The decision is important, as it is the first such decision to come from a court, rather than an arbitrator, and in a non-unionized setting. The importance of the decision weighed on the Court’s decision to accept the matter for summary trial, in addition to reference to the usual factors, including that there were no issues of credibility or substantial disagreement on fact and the decision would rest on the primary legal issue of whether an employer may layoff an employee pursuant to an MVP (at para 7, ref: Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d))

Key Facts

The defendant is a property and condominium management company; the plaintiff is an accounting professional who had spent about 19 years in service of a predecessor company purchased by the plaintiff in 2021.

Tribe provided substantive evidence of their decision making process relating to the implementation of the MPV, including reference to the MVPs that were known to have been adopted by both provincial and federal governments, as well as throughout the private sector.

Tribe also provided evidence that they had considered the effect of the MVP on employees who were determined not to get the vaccine, and as a result Tribe determined that under the MVP no employee so refusing would be disciplined or terminated, rather, they would be placed on unpaid leave for the duration of the policy. The MVP provided for medical and religious exemptions.

Finally, Tribe provided evidence that it had considered the nature of the work, the fact that it required regular in-person contact with other employees, and the fact that their workforce included at-risk and immunocompromised individuals who had legitimate concerns about working with unvaccinated people.

Constructive Dismissal

The Court then turned to the central legal question: whether the employer had constructively dismissed the employee by placing her on unpaid leave of absence in accordance with the MVP.

The Court referenced the decision of the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10. Their analysis begins with determining whether the alleged constructive dismissal arises from a single action – as in this case – or a series of actions considered collectively.

Where it is the result of a single action, such as the forced leave here or the suspension in Potter – the Court engages in a two stage test: first, whether a contract term has been unilaterally changed, and second, whether a reasonable person would consider that to be a substantial change to the essential terms of the contract.

In the case of administrative actions, the burden at the first stage shifts to the employer, who must show the policy was reasonable and justified, failing which a breach will be found and the onus will return to the employee to establish whether that breach constitutes a substantial change to essential terms.

Unilateral suspensions were also the issue in Devlin v. NEMI Northern Energy & Mining Inc., 2010 BCSC 1822, where the Court noted factors to be considered in determining reasonability 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.

The court referred to numerous decisions of arbitrators upholding MVPs, and also noted the obligation of all employers in BC under the Workers’ Compensation Act to establish health and safety policies for the protection of workers.

The Court concluded:

[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.

[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.

Commentary

It is often said that bad facts make for bad law; here, the opposite is true. Tribe’s management had done a good job in bringing persuasive, objective evidence before the Court establishing:

  1. Employers have a statutory obligation to protect employee health and safety through enactment of OHS policies.
  2. The basis for the MVP was reasonable with reference to both government and private sector MVPs.
  3. Employees in fact included immunocompromised and at-risk persons with legitimate personal health and safety concerns.
  4. The employee’s job necessarily involved interacting with other employees.
  5. The employer had considered the impact on employees and had selected unpaid leave as the least damaging alternative to discipline or termination that would still protect employees.
  6. The MVP included medical and religious exceptions.

In the result, this decision provides employers with an evidentiary road-map for establishing the reasonability of their MVP’s, on the basis of which they can have a reasonable expectation that constructive dismissal claims based on involuntary suspension or leave of absence will be dismissed.