Canadian Employment Law Today

Canadian HR Reporter, 2021 pursued a court action for constructive dis- missal. The court rejected Coutinho, finding that the IDEL regulations were intended to ben- efit employers by allowing them to lay off for reasons related to COVID, without risk of li- ability for constructive dismissal. The court reasoned that to conclude otherwise would render the IDEL regulations meaningless: "All temporary layoffs relating to CO- VID-19 are deemed to be IDELs retroactive to March 1, 2020 and prospective to the end of the COVID-19 period. As such, the plain- tiff's layoff is no longer a layoff. It is an IDEL and the normal rights for statutory leaves are applicable (e.g. reinstatement rights, benefit continuation). This means any argument re- garding the common law on layoffs has be- come inapplicable and irrelevant." According to the court, section 8(1), relied on by the court in Coutinho and Fogelman, simply establishes that the ESA is not the ex- clusive forum for addressing matters under the legislation. It does not operate to preserve the ability to sue for constructive dismissal in the face of the IDEL regulation. The court also found that the ESA can and does displace the common law. The employ - ee cannot be on a leave of absence for the purposes of the ESA and yet be terminated for common law purposes. Such a result would be absurd and would effectively render the IDEL provisions meaningless. "The Ontario Government recognized the inherent unfairness in subjecting employers to wrongful dismissal claims as a result of the government imposing a state of emergency," said the court in dismissing Taylor's claim. "If they did not take action, these claims would only serve to make the economic crisis from the pandemic even worse. It is just common sense." There is no denying the ring of common sense reflected by the court in Hanley. Employer takeaways IDEL provisions continue to be in place and, in fact, have been extended by the Ontario government and in other jurisdictions. Lay - offs continue to be a viable risk mitigation strategy for many employers. At this stage of the pandemic, vaccine refusal is a significant issue that many employers must contend with. Under the circumstances, IDEL may be an option. However, the ambiguity surrounding whether IDEL can constitute a constructive dismissal for common law purposes com - plicates the matter. Did the legislature really intend the IDEL mechanism to only preclude ESA claims, or was it meant to be a complete solution for employers to avoid the construc- tive dismissal consequences of a COVID-19 layoff? Until an appeal court rules on the issue or the legislature clarifies things, the queue of constructive dismissal actions continues to grow. For more information, see: • Coutinho v. Ocular Health Centre, 2021 ONSC 3076 (Ont. S.C.J.). • Fogelman v. IFG, 2021 ONSC 4042 (Ont. S.C.J.). • Taylor v. Hanley Hospitality, 2021 ONSC 3135 (Ont. S.C.J.). October 20, 2021 | Canadian Employment Law Today CREDIT: VALENTINRUSSANOV iSTOCK ABOUT THE AUTHOR Rishi Bandhu Rishi Bandhu is an employment lawyer in Oakville, Ont., advising employers and employees on all aspects of employment and labour law. He can be reached at (905) 849-0025 or rishi@blpc.ca.

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