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Bayer partially wins motion to probe employee’s vaccination status in wrongful termination suit

by HR Law Canada

The Ontario Superior Court of Justice has ruled partially in favor of Bayer Inc. in a wrongful dismissal case involving a former employee’s refusal to comply with the company’s COVID-19 vaccination policy.

LM, the plaintiff, was terminated by Bayer Inc. for failing to provide proof of COVID-19 vaccination or proof of exemption by the company’s set compliance deadline. Bayer Inc. sought an order compelling LM to answer questions about her vaccination status and views on vaccination, as well as to submit a “further and better affidavit of documents.”

The court granted Bayer’s motion in part, stating that LM must answer questions deemed relevant based on the pleadings. The judge dismissed the request for a more detailed affidavit of documents, citing a lack of sufficient evidence from Bayer Inc. to prove the existence of relevant, unproduced documents in LM’s possession.

In the statement of defense, Bayer Inc. argued that LM had no reasonable basis for declining vaccination and had failed to mitigate her losses by not getting vaccinated. LM had refused to answer six questions during her discovery, which fall into two categories: her vaccination status and her research and considerations about not getting vaccinated.

The judge found that the questions regarding LM’s vaccination status were relevant based on Bayer Inc.’s defense. According to the ruling, “Whether (LM) has received other vaccinations both prior to and since termination is relevant to Bayer Inc.’s pleading that she did not have a reasonable basis for declining vaccination.”

Similarly, the court ruled that questions about LM’s research and considerations in deciding not to get vaccinated are relevant to Bayer Inc.’s claim that she lacked a reasonable basis for her decision.

Concerning a further and better affidavit of documents, the judge found that Bayer Inc. had not met its evidentiary burden. Bayer Inc. presented an Instagram post as evidence of LM’s views on COVID-19 but failed to provide additional evidence to support the existence of other unproduced documents expressing her views.

“That post was made two days before (LM) was examined for discovery and nearly two months after (her) affidavit of documents was served,” the court said. “It was not a document that existed at the time of production.  Bayer Inc. essentially argues that the Instagram post supports a likelihood of other posts and communications.  No evidentiary foundation for that assumption or inference is in the record before me.  Bayer Inc. has not met its evidentiary onus.”

On the issue of costs, the court ruled that Bayer Inc. is entitled to a reduced amount given the “divided success” on the motion. It awarded $2,000 to the company, including HST and disbursements.

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