COVID-19 – Constructive Dismissal Update Revisited

In my last post, which you can find here, I wrote about section 7 of O. Reg. 228/20 entitled Infectious Disease Emergency Leave (the “IDEL Regulation”) and how it affects an employee’s claim for constructive dismissal.

Section 7 of this Regulation of the Employment Standards Act, 2000 (the “ESA”) states:

(1) The following does not constitute constructive dismissal if it occurred during the COVID-19 period:

1. A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease.

2. A temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease.

(2) Subsection (1) does not apply to an employee whose employment was terminated under clause 56 (1) (b) of the Act or severed under clause 63 (1) (b) of the Act before May 29, 2020.

As of the time of this writing, the IDEL Regulation defines the “COVID-19 period” as the period from March 1, 2020 to September 5, 2021. This may be subject to change depending on how the province recovers from the pandemic.

In my previous post, I wrote specifically about the decision in Coutinho v. Ocular Health Centre Ltd. (“Coutinho”) in which the judge concluded that section 7 of the IDEL Regulation did not preclude an employee’s civil claim for damages for pay in lieu of common law notice. Instead, section 7 limited only a claim for statutory entitlements under the ESA. In other words, while the legislation would halt a Ministry of Labour complaint, it would not hinder a constructive dismissal action in court.

However, not long after this decision, two other decisions of the Superior Court of Justice were released – one that was consistent with the reasons in Coutinho, another that reached the opposite conclusion.

In Fogelman v. IFG, (“Fogelman“) the judge followed the same reasoning as the judge in Coutinho, relying upon section 8 of the ESA which provides that “no civil remedy of an employee against his or her employer is affected by this Act.” In doing so, the judge allowed the employee’s action for constructive dismissal.

Interestingly, five days later, the judge in Taylor v. Hanley Hospitality Inc. (“Taylor“) agreed with the submissions of the employer in dismissing the employee’s action for constructive dismissal. While the judge in Fogelman did not refer to the Coutinho decision, the judge in Taylor cited the case and agreed with the employer that the analysis in that decision was wrong in law.

The judge in Taylor took judicial notice of the impact of the COVID-19 pandemic on hundreds of thousands of employees and the consequences of the government-mandated closure of certain businesses in order to mitigate the effects of the pandemic. In reaching her conclusion, the judge held that “exceptional situations call for exceptional measures. The Ontario Government recognized the inherent unfairness in subjecting employees to wrongful dismissal claims as a result of the government imposing a state of emergency. 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. The plaintiff’s action is dismissed.”

While I still believe that the conclusions reached in Coutinho and Fogelman are correct applications of the law, we will have to wait and see what the Court of Appeal decides on this issue. Until then, employees may want to hold off on pursuing constructive dismissal actions arising from a COVID-19 lay-off. The difficulty is that is it is unclear if or when the Court of Appeal will hear the appeal and render a decision.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.