In May 2020, in response to the ongoing COVID-19 pandemic, the Ontario government introduced O:Reg. 228/20: Infectious Disease Emergency Leave (the “IDEL”), a regulation under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”).
The IDEL provides that during the “COVID-19 period” (March 1, 2020 to January 1, 2022), non-unionized employees whose hours of work are temporarily reduced or eliminated for reasons relating to COVID-19, will be deemed to be on unpaid emergency leave under the ESA.
Further, IDEL provides employers with temporary relief from severance and termination requirements under the ESA, during the COVID-19 period.
The IDEL provides that if non-unionized employees’ work hours or wages are temporarily reduced for reasons related to COVID-19, during the COVID-19 period, this will not be considered a layoff, nor will the reductions in work hours or wages amount to a constructive dismissal.
At present, two conflicting Ontario Superior Court decisions have generated uncertainty with respect to the implications of the IDEL. Both cases looked at whether the IDEL prevents an employee from pursuing a common law action for constructive dismissal.
In Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, the court found that the plaintiff had been constructively dismissed at common law, and held that the IDEL did not prevent the plaintiff from pursuing a common law claim for constructive dismissal.[1]
The court relied on section 8 of the ESA, as well as a guide published by the Ontario Ministry of Labour, Training and Skills Development, which expressly stated that the rules only impacted what constitutes a constructive dismissal under the ESA, not what constitutes a constructive dismissal at common law.[2]
On the other hand, in Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135, the court held that an employee cannot be on both a leave of absence under the ESA, and be constructively dismissed.[3] The court dismissed the plaintiff’s claim on the basis that her employer had placed her on statutory emergency leave, so she consequently could not be constructively dismissed.
In reaching this conclusion, the court looked at the context in which the IDEL was enacted, specifically the exceptional circumstances of the COVID-19 pandemic, and the fact that the IDEL intended to minimize the unfairness of wrongful dismissal claims against employers as a result of the government-imposed state of emergency.[4]
Coutinho and Taylor have created a lack of clarity with respect to constructive dismissals during the COVID-19 period.
If you have been laid off or constructively dismissed, Landy Marr Kats LLP’s experienced employment lawyers can help you navigate this area of law.
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[1] Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 at para 36
[2] Ibid at para 46.
[3]Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 at para 21.
[4] Ibid at para 22.