Canadian Employment Law Today

July 14, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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PM41261516 No prognosis, no return-to-work estimate, but no accommodation attempt PG.4 B.C. employer had good reason to rule out worker's return to regular position, but didn't put much effort into investigating accommodation options SIX WEEKS after the Ontario Superior Court ruled that a COVID-19-related temporary layoff deemed to be an Infectious Disease Emergency Leave (IDEL) under provincial legislation could constitute a constructive dismissal under the common law, the same court — but a different judge — ruled the exact opposite. The latter decision, of Justice Jane Ferguson, dismisses the former as "wrong in law" and lacking in "common sense." This stunning clash of two decisions of the same high-ranking Ontario court will very likely make its way to the Court of Appeal for Ontario, and perhaps even to the Supreme Court of Canada. The stakes are high for all parties concerned and clarity is needed. A brief overview of the issue In the early days of the pandemic, many employers were forced to temporarily lay off employees. In re - sponse, on May 29, 2020, the Ontario government introduced a regulation under the province's Em- ployment Standards Act, 2000 (ESA) which deemed any employee laid off for a COVID-19-related reason to be on IDEL (the IDEL regulation). AN ONTARIO worker with some managerial responsibility and more than five years of service is entitled to eight months reasonable notice, but didn't do enough to look for new work and will get compensation for only six months, the Ontario Superior Court of Justice has ruled. La Presse is a daily online French-language newspaper based in Montreal. It hired Merida Lake, 54, in August 2013 to be the general man - ager of a sales division based in Toronto and she started work one month later. Prior to joining La Presse, Lake had worked for 20 years in sales and sales operations for various media compa- nies, including her previous position as a brand director for a multiplatform media brand. Her position with La Presse involved a more senior job title, higher salary, and higher bonus than her last job. She was the most senior employee in Toronto and reported to the vice-president of July 14, 2021 Pandemic shutdown in China doesn't justify layoff in Ontario: Court PG.3 Company couldn't justify global pandemic as reason for layoffs when they happened before pandemic hit Canada; workers deemed terminated when not recalled EARLIER on page 7 » CREDIT: ANDREYPOPOV iSTOCK FIRST JOB on page 6 » with Stuart Rudner A course correction on emergency leave and constructive dismissal Ontario court reverses position on COVID-19-related temporary layoffs and constructive dismissal Ask an Expert PG. 2 Seeking repayment when dismissed employee ignores release Limited job search reduces worker's reasonable notice entitlement Ontario worker's underwhelming mitigation efforts reduce period from 8 to 6 months BY SHERRARD KUZZ LLP BY JEFFREY R. SMITH

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