Employee Refuses to Answer Questions About Vaccination Status in Wrongful Dismissal Claim

Written on behalf of Peter McSherry

During the COVID-19 pandemic, employers and employees struggled with their rights and obligations in relation to imposed safety standards and restrictions in the workplace. While the various types of safety measures and policies varied between workplaces, a primary concern for many was individual’s vaccination status. In some cases, these sudden policies and mandates led to disputes and terminations, some of which resulted in wrongful termination claims.

A recent decision from the Ontario Superior Court of Justice shows that the ripple effect of COVID-19 and the resulting vaccination policies and disputes continue to make their way through the courts. This decision also sheds light on how courts may respond to an employee’s refusal to answer questions or provide information in relation to their vaccination stats during litigation.

Employee terminated following failure to comply with vaccination policy

In the case of Maalouf v. Bayer Inc., the plaintiff (the “employee”) alleged that she was wrongfully dismissed after she was terminated due to her failure to comply with the employer’s COVID-19 vaccination policy and did not provide proof of vaccination.

This matter proceeded to an examination for discovery in which counsel for the respective parties asks the opposing witnesses various questions in order to understand the case they must meet at trial. During the discovery phase of this dispute, the employee refused to answer six questions which concerned her vaccination status, as well as the research and considerations that led to decide against getting the COVID-19 vaccine. As a result, the defendant employer asked the Court to compel the employee to answer the specific questions.

Are the questions relevant to the trial?

The Court first referred to the Rules of Civil Procedure, which state that a person examined for discovery shall answer, to the best of their knowledge, information, and belief, a proper question relevant to the matter at issue in the action. This limitation prevents irrelevant questions from being asked, but requires parties to answer any and all relevant questions.

The Court then began its analysis by considering the questions which concerned the employee’s vaccination status. The employee had refused to answer questions inquiring whether or not she had received the COVID-19 vaccine following her termination, and other questions about whether she received any other vaccinations prior to, or following, her termination.

Before finding that the questions asked by the employer were relevant, the Court review the employer’s defence, which stated that:

“52. In the face of overwhelming evidence that vaccination is safe and effective, the (employee) decided not to get vaccinated. […] She did not have a reasonable basis for declining vaccination. […] As such, (the employer) pleads that even if (the employer) did not have just cause to terminate the (employee’s) employment (which (the employer) denies), the (employee), by failing to get vaccinated, breached her duty to mitigate her damages and therefore is not entitled to any damages. She could have saved her job and continued working for (the employer) had she made the reasonable decision to get vaccinated.

53. (The employer) also pleads that the (employee) has failed to take adequate steps to mitigate her damages appropriately after her employment with (the employer) ended, and puts the (employee) to the strict proof thereof. )The employer) specifically states that given the (employee’s) skill set and experience, and the current worker shortage in Ontario, the (employee) is highly re-employable and should be able to find a comparable position.”

Employer argues employee failed to mitigate her losses

The Court acknowledged that the proposed questions spoke to the employer’s argument that the employee decided not to get vaccinated, had no reasonable basis for refusing to do so, and failed to mitigate her losses by continuing to avoid vaccination.

The Court was satisfied that the questions relating to the employee’s vaccination status were relevant because they supported the employer’s position that the employee had no reasonable basis for declining the vaccine. The Court noted that the employer “is entitled to explore that issue on discovery, regardless of whether or not (the employee) ultimately challenges the admissibility or use of her answers in evidence at trial.”

Vaccination-related questions not a “fishing expedition”

The Court then considered the relevancy of the questions relating to the employee’s research and considerations about the vaccine. These questions sought to understand more about the data and research the employee consulted before making her decision not to receive the vaccine. The questions also sought to determine whether the employee had also considered public health recommendations.

These questions were also determined to be relevant to the employer’s argument that the employee did not have a reasonable basis for declining the vaccination. The Court rejected the employee’s allegation that the employer was on a “fishing expedition,” and instead agreed with the employer that the research, consideration, and recommendations, if any, that informed the employee’s decision were directly relevant to the issue at trial.

Ultimately, the Court ordered that the parties re-attend examination at an examination for discovery in order for the employee to answer the outstanding six questions which were determined to be relevant to the issue at hand. The Court also ordered the employee to pay costs of $2,000.

Employment Lawyer Peter A. McSherry Provides Employees With Unparallelled Representation in Wrongful Termination Claims

If your employment has been terminated without reasonable notice or appropriate severance from your employer, you might have a claim for wrongful dismissal. Therefore, it is important to obtain legal advice following a termination to determine whether you have received your entitlements under the applicable employment legislation. The trusted and experienced employment law team, in Guelph, led by Peter A. McSherry, will provide you with the knowledge and information you need to make informed decisions about your next steps following a wrongful termination. To schedule a consultation and learn more about your options, contact us by phone at 519-821-5465 or reach out to us online.