In late May 2020, the Ontario government passed the Infectious Disease Emergency Leave regulation under the Employment Standards Act (ESA). This new regulation stated that during the COVID-19 pandemic, an employee who is non-unionized was considered to be on infectious emergency leave when their employer temporarily reduced their hours or work, or eliminated their hours of work due to the pandemic.

This temporary regulation applies from March 1, 2020 to July 31, 2021. The question that arose was what kind of effect these temporary regulations would have on employee dismissals? Often, we do not know the answer to such a question until we get some case law that sees the court interpreting these rules. Well, one recent Ontario judgment just looked at the temporary regulation in case involving a claim for constructive dismissal.

Employer Places Employee on Temporary Leave After Company Dispute

The employer, the principals of a chain of ophthalmic clinics operating throughout Ontario, hired the employee as an ophthalmic technician in 2014. In 2018, the employee was promoted to office manager. In April 2020, some of the ophthalmologists practicing at the clinics engaged in a dispute concerning various business issues. In late April 2020, one of the principals of the clinics, R, changed the locks to the premises. When the employee went to work the next morning, she was met by R and two of the ophthalmologists. R explained to each of them that they would not be allowed entry to the premises. The employee returned to her home and received a telephone call from R, advising that he would follow up with her about the situation.

In late May 2020, R wrote a letter to the employee advising that:

  • The employer was forced to close one of the clinics, and as part of that process, found it necessary to temporarily reduce its workforce;
  • The employee was being placed on temporary layoff, and a Record of Employment would be issued as soon as possible and would include her pay up to and including the effective date of the layoff;
  • A link was provided with information regarding unemployment benefits; and
  • The employer would do their best to recall the employee to her position as soon as possible.

Some of the ophthalmologists that had worked for the employer created a new clinic. The employee became re-employed in the new clinic in late July 2020.

The employee filed a statement of claim against the employer for constructive dismissal. The employer based part of its defence on the Infectious Disease Emergency Leave, and brought a motion to dismiss the employee’s action.

The Relevant Section of the Infectious Disease Emergency Leave Regulation (IDEL)

The section in the IDEL regulation that stated that a reduction in hours or wages was not a constructive dismissal states:

“7.  (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.”

The Employer Could Not Rely on the Provisions of the Infectious Disease Emergency Leave

The Ontario Superior Court of Justice found that the IDEL regulation did not affect the employee’s right to pursue a civil claim for constructive dismissal against the employer at common law.

The Court found that s. 8(1) of the ESA constrained the scope of s. 7 of IDEL. Further, it was not possible to reconcile the interpretation of the IDEL regulation with the part of the legislation that unequivocally stated that an employee’s civil remedy against her/his employee shall not be affected by any provision of the Act.

The Ontario Ministry of Labour, Training and Skills Development, reinforced this in their guide “Your Guide to the Employment Standards Act: Temporary Changes to ESA Rules”. The Ministry’s document was non-binding, however, the Court concluded that the guide was helpful in offering an insight into the Ministry’s intention. This was found to include the stipulation that the temporary regulations did not affect an employee’s common law right to advance a civil claim of constructive dismissal, a position which was consistent with s. 8(1) of the ESA.

The court dismissed the employer’s action.

The bottom line of this decision is, that even with this temporary regulation, employees can still bring civil actions for constructive dismissal. Further, employers will not be able to rely on temporary or emergency declarations to justify unrelated dismissal claims.

For advice on employee rights, employer liability and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.