The facts before the Ontario court in Croke v VuPoint Systems, a decision released in February of 2023, were as follows:

1. The Plaintiff employee worked as an installer for the defendant. The company’s sole client was Bell Canada. Bell required that all contractors must be vaccinated.
2. In response to this, the employer formed its own vaccine policy which mandated vaccination, failing which the employee would be assigned no work.
3. The Plaintiff refused and was then terminated.

The Court found that these facts allowed a successful defence based on the frustration argument. The reasoning was as follows:

1. The pandemic was an unforeseen event;
2. The need for vaccination was due to the actions of the third party;
3. Due to the Plaintiff’s refusal, he was incapable of performing the essential duties of the position.

The claim was hence dismissed.

There may be arguments as to the propriety of this plea as the Plaintiff could have readily avoided the issue by voluntarily being vaccinated. This would be a difference without a consequence as on either reasoning, the case would be dismissed.