IDEL and Constructive Dismissal
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The Ontario Superior Court has ruled once again on the right of an employee to assert a constructive dismissal in light of the O. Reg. 228/20: Infectious Disease Emergency Leave (“the Regulation”) under the Employment Standards Act, 2000 (ESA). In the latest decision, the court ruled that the Regulation does not preclude an employee from asserting a common law constructive dismissal. 

As discussed in previous posts, under the Regulation neither a reduction in the employees hours of work or wages constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period. The COVID-19 Period keeps changing on us, but it currently runs from March 1, 2020 to September 25, 2021.  There have been conflicting decisions about whether the Regulation also removes an employee’s right to assert a constructive dismissal under the common law. 
Continue Reading Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal

COVID-19 Vaccine FAQs for Employers
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More than 13 million people in Canada are now fully vaccinated against COVID-19, yet we’re finding employers are more and more worried about those who still aren’t and don’t plan to be. 

Below, we answer some of the questions we are hearing from employers and set out what we think they should be considering.

1. Can I implement a mandatory vaccination policy in my workplace?

The question is really would it be reasonable to do so? This will depend on the context of the workplace and what other safety measures can be appropriately taken. If there isn’t a high risk of infection in the workplace, it won’t be reasonable. If the work is performed without exposure to risk, for instance by working remotely, then the answer is easier—it’s absolutely unreasonable.
Continue Reading COVID-19 Vaccine FAQs for Employers

IDEL and constructive dismissalsLast month we blogged about the  Ontario Superior Court’s decision in Coutinho v. Ocular Health Centre Ltd. (Coutinho) when the court ruled that an employee placed on Ontario’s Infectious Disease Emergency Leave (IDEL), established by O.Reg 228/20 (the Regulation), could still bring an action for constructive dismissal at common law. The plot has thickened with the release this month of a contradictory decision in Taylor v. Hanley Hospitality Inc. (Taylor).

In the Taylor decision, the court considered the same issue – is the employee precluded by the Regulation from bringing a claim for constructive dismissal under the common law, when their hours are reduced or eliminated as a result of the pandemic? While the court in Coutinho concluded no, the court in Taylor has concluded yes. 

Where does that leave us? Because these two decisions are from the same level of court, neither has more weight than the other for later judges who might be deciding cases on similar facts. When decisions of the same level conflict, we need a higher court to weigh in – in this case, that would be the Ontario Court of Appeal. 
Continue Reading Good News for Employers: A New Decision On Constructive Dismissal and the IDEL

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The COVID-19 Period in Ontario’s Infectious Disease Emergency Leave has been extended until September 25, 2021. Prior to this change, the COVID-19 Period was set to end on July 3, 2021. 

What does the end of the COVID-19 Period mean?

The end of the COVID-19 Period is relevant to employers who reduced the hours of their employees due to COVID-19 reasons. In many cases, these employees were “laid off,” meaning they work no hours at all. 

Typically, a layoff can only last for a specific number of weeks. The introduction of the “deemed IDEL” and the extension of the COVID-19 Period have made it possible for these employees to remain off work/laid off for much longer, without a termination being triggered. 

If you were an employer keeping the July 3, 2021 end date in mind, you can forget that and add September 25, 2021 to your calendar.
Continue Reading IDEL COVID-19 Period Extended to September 25, 2021

Paid Infectious Disease Emergency Leave
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We’ve discussed the unpaid Infectious Disease Emergency Leave (IDEL) in a number of our previous blog posts. On April 29, 2021, the Ontario government made updates to this leave and amended the Employment Standards Act, 2000 (ESA), introducing the Ontario COVID-19 Worker Income Protection Benefit. In addition to the unpaid IDEL, employers are now also required to provide eligible employees with the new paid IDEL – more specifically, up to $200 a day for up to three days – for reasons related to COVID-19. The three days need not be taken consecutively. 

What are the eligible reasons for taking the paid IDEL? 

Paid IDEL is available for certain reasons related to COVID-19, including:
Continue Reading The New Paid Infectious Disease Emergency Leave (IDEL)

Constructive Dismissal and the IDEL
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At long last, the impact of Ontario’s Infectious Disease Emergency Leave (IDEL) on employee constructive dismissal claims has been litigated. Employment lawyers have been speculating for a long while about how courts will treat the various employment pivots employers were required to make during the pandemic. We now have our first answer. 

Last week, the Ontario Superior Court of Justice released its decision in Coutinho v. Ocular Health Centre Ltd. and ruled that the IDEL does not take away an employee’s ability to sue for constructive dismissal. 

What’s Constructive Dismissal?

A constructive dismissal occurs when an employer unilaterally and substantially changes an express or implied term of the employee’s contract. The term also needs to have been essential. Changes regarding pay, duties, hours of work etc., can all potentially be constructive dismissals. 
Continue Reading An Important Ruling for Employers on Constructive Dismissal and the IDEL