Physicians working under service agreements often have contracts that state that they are independent contractors. However, this label is not determinative. In Northern Health Authority v. du Plessis, a pediatrician recovered $388,582 after his contract was terminated amid fears relating to COVID-19.
Facts
Dr. du Plessis provided pediatric services to a health authority under a series of one-year term service contracts from 1999 until his termination in 2021, at age 73.
Each of the service contracts stated that he was an independent contractor and contained an arbitration clause. Although earlier versions of the contract stated that the health authority could terminate the contract “without cause or reason…by providing not less than 30 days notice…”, the 2021 service contract stated that “…either party may terminate the Contract without cause upon six (6) months’ written notice to the other party.”
Dr. du Plessis had refused to obtain a flu vaccine contrary to a 2012 British Columbia public health officer (“PHO”) “order”, yet was permitted to continue providing services under contract for almost a decade.
In 2019, Dr. du Plessis suffered a heart attack which required coronary bypass surgery. When he returned to work, he no longer provided on-call or hospital services. Nor did the health authority expect him to do so.
When British Columbia declared a state of emergency on March 16, 2020, Dr. du Plessis closed his clinic for health and safety reasons and provided all services to patients virtually via telephone consultations from his home. The health authority took no issue with that arrangement.
In April 2021, the parties renewed his service contract (the “2021 Contract”). The 2021 Contract did not state that Dr. du Plessis would continue providing services exclusively virtually from his private residence. It did not contain any provision requiring or exempting him from obtaining a COVID-19 vaccine.
Those vaccines became available in British Columbia in December 2020. By April 2021, approximately one million doses of the vaccine had apparently been administered in the province.
In February 2021, Dr. du Plessis declined the health authority’s offer to reserve a vaccine dose for him. The PHO knew at that time that he had declined the COVID-19 vaccine.
Amidst fears about COVID-19, the PHO issued numerous “orders.” This included one issued on October 14, 2021, entitled “Hospital and Community (Health Care and Other Services) Covid-19 Vaccination Status and Information and Preventative Measures” (the “Vaccine Mandate”).
The B.C. Court of Appeal described the Vaccine Mandate as “lengthy and complex, containing 29 recitals and five pages of definitions.” And, it was amended on several occasions.
All staff and physicians employed by British Columbia health authorities were told that they were to have a first dose of the COVID-19 vaccine by October 25, 2021. The Vaccine Mandate stated that medical staff and physicians could apply for a medical exemption from the vaccine requirement.
Dr. du Plessis chose not to receive a COVID-19 vaccine because of health concerns and did not apply for an exemption because he understood he would not qualify.
The health authority advised Dr. du Plessis that his contract would be terminated on November 14, 2021, if he had not by then obtained a first dose of the COVID-19 vaccine or a medical exemption.
As he had not applied for an exemption nor received the vaccine, the 2021 Contract was indeed terminated. The health authority claimed frustration.
Legal Proceedings
Dr. du Plessis commenced proceedings under the Arbitration Act. He sought a declaration that he was wrongfully dismissed, and damages.
The health authority defended by arguing that the 2021 Contract was terminated by the common law doctrine of frustration. In the alternative, it argued that Dr. du Plessis fundamentally breached the 2021 Contract by not complying with the Vaccine Mandate.
Arbitration Award
The arbitrator concluded that even though the PHO was aware that dr du Plessis declined the vaccine in February 2021, it deliberately chose not to make vaccination a term of any service contract or the parties’ relationship including, notably, the 2021 Contract.
The arbitrator considered it reasonably possible that at the time they entered into the 2021 Contract, the parties deliberately chose not to provide for mandatory vaccination or covid contingencies because, from a health and safety standpoint, [Dr. du Plessis’s] “virtual practice met the gold standard from the standpoint of eliminating the transmission of covid.”
Thus, the 2021 Contract was not frustrated by the Vaccine Mandate, and the health authority had no cause to terminate it.
In a liability award issued September 14, 2023, the arbitrator found that the health authority breached the contract in terminating Dr. du Plessis.
Regarding the remedy, the arbitrator concluded that Dr. du Plessis was a dependent contractor and accepted the legal presumption that dependent contractors are entitled to reasonable notice on termination.
However, the 2021 Contract clearly and unequivocally provided a six-month notice period for termination without cause. The arbitrator found that this rebutted the presumption of reasonable notice. Applying that provision, he found that Dr. du Plessis was entitled to six months’ notice for without cause termination and awarded one half of his annual compensation as damages plus costs.
In a remedy award issued on February 16, 2024, the arbitrator found that Dr. du Plessis was entitled to damages for breach of contract and costs, totalling $388,582.13.
Court of Appeal Decision
In Northern Health Authority v. du Plessis, 2026 BCCA 143 at paras 94 and 113, the Court of Appeal pointed out that the Arbitration Actallows for appeals only on pure questions of law. In order to succeed on appeal, the appellant health authority or the cross-appellant physician had to raise an extricable question of law arising out of the arbitrator’s analysis.
As neither party raised such an issue, the Court of Appeal dismissed both the appeal and the cross- appeal.
A takeaway for Physicians
One interesting aspect of this case is that the arbitrator concluded that Dr. du Plessis was not an independent contractor, but a dependent contractor. That gave rise to a legal presumption that dependent contractors are entitled to reasonable notice on termination.
In this case, the arbitrator found that the 2021 Contract clearly and unequivocally provided a six-month notice period for termination without cause and that this clause rebutted the presumption of reasonable notice.
Whether or not a contractual notice provision will be valid and govern a dismissal must be assessed in each particular case. While in this case the contractual provision governed, that is not so in all cases.
The broader significance of this case extends beyond public health measures. Physicians working under long-term service agreements should not assume that being labelled an “independent contractor” will necessarily determine their legal rights on termination.
Courts and arbitrators will look to the substance of the relationship, including exclusivity, economic dependence, and the realities of the working arrangement.
If you are a physician who has been dismissed, or simply want to understand your rights, we are here to help. Learn more about Inspire Lawor book a consultation to discuss your specific situation.
You may also be interested in this article: Employee, Independent Contractor or Dependent Contractor?
This article is for general informational purposes only, does not constitute legal advice, and is not directed at any particular client or case. The views expressed herein are based on current law, specific facts and available information and may not be applicable to your specific situation or to any matter on which we may act. You should not rely on this material in place of consulting a qualified lawyer about your own situation.
About the Author
Susan Kootnekoff is a lawyer and founder of Inspire Law, an employment and human rights law practice that serves clients across British Columbia and beyond. She represents clients in employment related matters including wrongful dismissal claims, employment contract negotiations, severance negotiations, human rights complaints and workplace rights.
© 2026 Susan Kootnekoff, Barrister & Solicitor
