The COVID-19 litigation lag continues to play out in Canadian courts; and employers are starting to get some clarity on some of the key workplace issues that arose during the pandemic.
In Clark v. City of Prince George, 2025 BCSC 812, the Supreme Court of British Columbia recently dismissed a wrongful dismissal claim brought by a long-time employee who was placed on unpaid leave for refusing to comply with the City’s COVID-19 vaccination policy.
This decision reinforces the ability of employers to implement health and safety measures under implied contractual terms of employment and highlights the legal distinction between disciplinary and administrative actions in the employment context.
The decision also suggests that a measured and procedurally fair approach be taken when implementing pandemic-related policies and provides practical guidance for employers defending similar claims in the post-COVID era.
Background
In late 2021, the City of Prince George implemented a mandatory COVID-19 vaccination policy for its employees. Mr. Clark, a non-unionized City of Prince George employee since 2009, decided not to be vaccinated against COVID-19 and proposed alternatives, such as remote work or periodic testing.
Although the City had permitted part-time remote work during the pandemic, it determined that full-time remote work was not feasible for Mr. Clark’s role and that no exceptions to the policy would be made outside of approved human rights accommodations.
As a result, Mr. Clark was placed on unpaid leave effective January 2022. His benefits continued, and the City advised him that he could return to work upon submitting proof of vaccination. Mr. Clark instead asserted that he had been constructively dismissed and commenced litigation.
The Court ultimately found that the City had the implied contractual authority to implement the vaccination policy as a health and safety measure, whereby compliance with the vaccination policy became a condition of employment, and that placing Mr. Clark on unpaid leave for non-compliance was reasonable, administrative (not disciplinary), and justified.
Key Legal Issues and Findings
At trial, the City relied heavily on Parmar v. Tribe Management, 2022 BCSC 1675 (Parmar), where an employee who was suspended without pay pursuant to a mandatory COVID-19 vaccination policy was found not to have been constructively dismissed. Our blog on this case can be found here: Extraordinary Times Call for Extraordinary Measures: Unpaid Leave for Non-Compliance with Mandatory Vaccination Policy Not Constructive Dismissal.
The Court assessed whether 1) the unpaid leave was administrative or disciplinary; 2) the employment contract permitted the City to unilaterally implement a vaccination policy; 3) the unpaid leave was reasonable and justified; and 4) Mr. Clark was forced to resign.
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Was the unpaid leave administrative or disciplinary?
Mr. Clark argued that the leave was intended to compel compliance and was therefore disciplinary. The Court disagreed, finding that the purpose of the leave was administrative. It was implemented to allow him, as an unvaccinated employee, additional time to reconsider his position considering public health guidance. In particular, the policy distinguished between “employment consequences” for those who remained unvaccinated, and “disciplinary consequences” for those who submitted fraudulent vaccination certificates or fraudulent human rights accommodation requests.
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Could the City implement a vaccination policy under the employment contract?
The Court then addressed whether the City had the contractual authority to implement the policy. Unlike in Parmar, Mr. Clark’s employment contract did not contain an express term requiring compliance with employer policies. However, the Court found that there was an implied term that allowed the City to implement workplace health and safety policies, particularly considering its obligations under the Workers Compensation Act and the Occupational Health and Safety Regulation. The Court concluded that this implied term was reasonable, necessary to give business efficacy to the contract, and consistent with both parties’ expectations.
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Was the unpaid leave reasonable and justified?
The Court found that the City acted in good faith, had legitimate business reasons for its actions, and maintained Mr. Clark’s employment status and benefits throughout. The leave was temporary, and Mr. Clark’s position remained available until after he initiated legal proceedings.
Notably, in conducting its analysis, the Court held that employer health and safety policies do not need to be perfect, they need only be reasonable and justified.
The Court emphasized that the reasonableness of an administrative suspension must be assessed in the context of what was known about COVID-19 at the time the policy was introduced. The City's policy was aligned with public health recommendations, was consistent with practices adopted by other large employers, and responded to particularly acute risks in the Prince George region, which was experiencing elevated COVID-19 case rates and health system strain at the time.
The Court rejected Mr. Clark’s argument that he should have been permitted to work from home. It found no requirement that the City make exceptions for employees able to work remotely and noted that a consistent application of the policy served important public health purposes.
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In the alternative, was Mr. Clark forced to resign?
The Court rejected the suggestion that Mr. Clark had been forced to resign. It held that Mr. Clark voluntarily elected to treat the City’s actions as a repudiation of his employment contract. He remained employed throughout the leave period, and his position was not filled until he formally claimed constructive dismissal.
Ultimately, the Court concluded that the City had not breached Mr. Clark’s employment contract.
A Different Approach: Paul v. Sensient Colors, 2025 ONSC 3127
The Ontario Superior Court recently reached a different result in somewhat different circumstances in Paul v. Sensient Colors, 2025 ONSC 3127. This case involved a sales representative with ten years of service who was terminated for just cause after refusing to disclose her vaccination status in breach of the employer’s mandatory vaccination policy. Ms. Paul did not rely on any human rights exemption, and the employer’s policy clearly stated that failure to comply would result in dismissal.
Although the Court accepted the reasonableness of the policy itself, it concluded that the employer’s decision to terminate Ms. Paul for cause was disproportionate. In doing so, the Court considered the following relevant factors: Ms. Paul primarily worked from home both prior to and during the pandemic (90% of her time); she continued to exceed performance expectations; she faced limited vaccination-related customer constraints; and complied with all other safety protocols. The Court held that alternative measures, such as reassigning her client portfolio or placing her on a leave of absence, would have been a more appropriate response.
As a result, the Court held that just cause was not established and awarded Ms. Paul twelve months’ common law reasonable notice. The decision reinforces the principle of proportionality in assessing employer responses to non-compliance with pandemic policies, as well as taking a contextual approach.
Takeaways for Employers
The decisions in Clark and Paul demonstrate that courts are more likely to uphold unpaid leaves or suspensions than terminations for cause when employees refuse to comply with COVID-related mandates. Both decisions affirm that employers may implement reasonable vaccination policies in response to public health risks, even in the absence of a specific contractual provision. Neither employee relied on a human rights exemption, and both cases turned on how the employer enforced its policy rather than the policy’s validity itself.
The principle of proportionality plays a central role in the analysis. Even where the underlying policy is reasonable, the consequences imposed on the employee must be appropriate and carefully calibrated given the context.
Employers can rely on implied contractual terms to implement workplace safety policies during emergencies. Unpaid leaves may not amount to constructive dismissal if they are temporary, reasonable, non-disciplinary, and preserve the employee’s status and benefits.
To mitigate risk, employers should ensure that any such policies are clearly drafted, consistently applied, and backed by legitimate business and safety justifications.
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