Published on May 19, 2022 by Jeremy D. Schwartz
In an anti-climactic ruling released May 12, 2022, the Ontario Court of Appeal has returned to the courts below the question of whether an (alleged) infectious disease emergency leave (“IDEL”), pursuant to the Ontario Employment Standards Act, 2000 (the “ESA”), may nevertheless trigger a constructive dismissal under the common law.
In April 2021, the Ontario Superior Court of Justice ruled in Coutinho v Ocular Health Centre Ltd. (“Coutinho”) that a layoff implemented for reasons related to COVID-19, which was thus “deemed” by the ESA to be a statutorily protected IDEL, was nonetheless still a layoff for common law purposes that may trigger constructive dismissal. Barely two months later, a different judge of the same court released a contrary decision in Taylor v Hanley Hospitality (“Taylor”), which was a summary judgement ruling dismissing the plaintiff’s claim (i.e., without a trial), in which the court also expressly held that Coutinho was wrongly decided and should not be followed.
Employers were thus left with two conflicting decisions.
When the employee in Taylor was granted leave to appeal to the Ontario Court of Appeal, it was hoped that Ontario’s highest court would address the heart of this significant interpretive issue once and for all. Instead, the Court of Appeal ruled on entirely procedural grounds that there were critical facts in dispute that necessitated a trial. Specifically, the employee denied that the layoff was for reasons related to COVID-19 (a precondition to the deeming provisions applying at all), and the court below had made findings concerning the intent of the Legislature apparently by taking judicial notice thereof (without evidentiary foundation). In other words, the Court of Appeal ruled that it was inappropriate for the court below to have granted summary judgement without evidence on those (and other) disputed facts.
Unless the government extends the regulation again, employees placed on temporary layoff (or who suffer a material reduction in hours or pay) will no longer be deemed to be on IDEL effective July 31, 2022 – even if the layoff or other material reductions were the result of COVID-19. As such, this issue remains, and so employees and employers may yet be forced to litigate over these IDEL provisions for months or years to come.
Please join us at the First Reference Employment Law Conference on June 23, where we will discuss these and other hot topics in employment law.