We recently reported on the Ontario Superior Court's
decision in Coutinho v. Ocular Health, which held
that an employee who was "placed on temporary layoff" due
to the COVID-19 pandemic, and deemed to be on infectious disease
emergency leave, had been constructively dismissed at common law.
See our May 14, 2021 Update, IDEL May Not Preclude Employees from Claiming
Three weeks later, the Court in Taylor v. Hanley
that Coutinho was wrongly decided and
should not be followed.
In Taylor, the Court determined that the
government-enacted Ontario Regulation 228/20: Infectious Disease
Emergency Leave (IDEL) operates to displace the common
law. Thus, where an employee is temporarily laid off pursuant to
IDEL, this temporary layoff does not constitute dismissal under
the Employment Standards Act (ESA) nor does it
constitute constructive dismissal at common law. The Court reasoned
that, to apply the interpretation put forward
in Coutinho would render IDEL
meaningless, which "offends the rules of statutory
As we previously reported, under IDEL an employee is deemed to be on "infectious disease emergency leave" where:
- the employee is not represented by a trade union;
- the employer temporarily reduces or eliminates the employee's hours of work and/or wages for reasons related to COVID-19; and
- the temporary reduction or elimination occurs during the "COVID-19 period" as defined in IDEL.
IDEL specifically states that a reduction or elimination in a
non-unionized employee's hours and wages for reasons related to
COVID-19 (1) does not constitute a layoff within the meaning of the
ESA, and (2) does not constitute constructive dismissal.
It remains to be seen how the two cases will be reconciled, and
whether one or both of these decisions will be reviewed by the
Ontario Court of Appeal.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.