May 13, 2022
In the May of 2021 decision of Coutinho v. Ocular Health Centre, the Ontario Superior Court ruled a COVID-19-related temporary layoff deemed to be an Infectious Disease Emergency Leave (“IDEL”) under the province’s Employment Standards Act, 2000 (“ESA”) could constitute a constructive dismissal under the common law1.
Six weeks later, in Taylor v Hanley Hospitality Inc. the same court (different judge) ruled the exact opposite2 dismissing the initial decision as “wrong in law” and lacking in “common sense” (discussed in our June 9, 2021 briefing note).
Hanley made its way to the Court of Appeal and in a decision released May 12, 2022, the court allowed the appeal on procedural grounds. Significantly, the court declined to rule on the substantive issue of whether a COVID-19 related temporary layoff under the ESA could constitute a constructive dismissal at common law. The matter was sent back to the lower court to be reheard. The decision of the Court of Appeal therefore provides no clarity for employers or employees on this important and contentious point of law.
