Where we're at and Where we're going

Mandatory vaccination policies, infectious disease emergency leaves, wage subsidies, Canada emergency response benefits; quarantines, outbreaks – these are just some of the topics that have kept employers busy since the world was overtaken by the COVID-19 pandemic. It has all led to a dizzying amount of developments in Canadian labour and employment law.

The dockets of judges and arbitrators have been filled with COVID-19 labour and employment related matters. As a result, we are now seeing a steady stream of decisions that are having a profound impact on the relationship between Canadian employers and their employees.

The Dentons COVID-19 case catalogue is intended to provide employers with a snapshot of the labour and employment law cases to date that we believe are particularly important to the Canadian workplace. Whether you are considering what impact, if any, COVID-19 will have on an employee's termination entitlements or whether an employee's breach of your workplace's COVID-19 protocols constitutes just cause for dismissal, we hope this resource will provide you with some helpful guidance.

As we approach the two-year anniversary of the World Health Organization's declaration of COVID-19 as a pandemic, employers should brace themselves for further case law developments. In particular, several of the cases referenced in the following pages are under appeal and so we should expect more case alerts in the year ahead.

The notice cases:

The early days of the pandemic were marked by a significant degree of economic uncertainty leading to skyrocketing unemployment rates. As such, judges took judicial notice of the economic turmoil by providing employees with longer notice periods. However, as the economy rebounded and the labour market tightened, judges have tempered their response by noting that the COVID-19 pandemic does not automatically lead to a lengthy notice period.

The case

When was the employee dismissed?

What the court said about the employee's termination entitlements
Yee v. Hudson's Bay Company, 2021 ONSC 387
  • Employee dismissed before the COVID-19 pandemic began.
  • The court confirmed that "notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes for the employee to find employment".
  • Terminations that occurred before the COVID-19 pandemic and its effect on employment opportunities should not attract the same consideration as terminations after the beginning of the COVID-19 pandemic and its negative effect on finding comparable employment.
Kraft v. Firepower Financial Corp., 2021 ONSC 4962.
  • Employee dismissed after the pandemic began and days before the Ontario government declared an emergency
  • The uncertainty of the COVID-19 pandemic is one of many factors considered when assessing reasonable notice.
  • Court awarded an additional month of notice because there was evidence that COVID-19 negatively impacted the employee's ability to secure new employment.

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