Two recent cases seem to contradict each other around IDEL
Laws around constructive dismissals in Ontario have suddenly been thrown into question, thanks to two separate court rulings that seemed to contradict each other.
And what will that mean for employers on Sept. 26 once the province’s infectious disease emergency leave (IDEL) leave expires? Many lawyers and organizations are unsure, says one Toronto arbitrator and mediator.
“Does that mean every employer has to recall everyone? Or if they don’t recall them, does that now mean they’ve been fired, then?” says Barry Fisher of Barry Fisher Arbitration and Mediation. “If you don’t recall someone from a leave and they’re terminated, does it simply mean that all these lawsuits out there are and then the termination date would not be back in March when they actually stopped working?”
The two cases, Coutinho v Ocular Health Centre Ltd. and Taylor v Hanley Hospitality Inc. seemingly provided conflicting messages and will create “more disruption, more uncertainty for months and months and months,” says Fisher. “But the Coutinho case is basically saying regulation cannot purport to push out the common law and Taylor says the exact opposite.”
In the Coutinho case, the court found that an employee who was placed on the IDEL was constructively dismissed and able to claim damages. But in the Taylor instance, the justice ruled that when the worker was placed on the IDEL, it was considered a leave of absence and not subject to a constructive dismissal claim.
In Coutinho, the ruling said that even though the Ontario government amended the Employment Standards Act in May 2020, it didn’t affect his common-law rights but for Taylor, the new regulation overruled common-law rights.
“The theory of Coutinho is basically nothing affects the civil remedy legislation,” he says. “The other key thing out of Coutinho was the basic principle that our regulation cannot contravene its underlying statute. The argument of Coutinho is even if the regulations said this overrides the common law they are getting, would be you can’t do that. You can’t do it by a reg[ulation], you have to pass a statute… that requires the messy obligation to actually have a debate. It’s so much easier to rule by edict, i.e. send out a regulation.”
Even though the Taylor case was argued before Coutinho, there was no judgment rendered when it was delivered but “the lawyers made the judge aware of it,” says Fisher, which made the ruling all the more puzzling. “Superior Court judges don’t have to follow each other but they tend to. This one obviously didn’t want to.”
“What struck me odd about Taylor is, first of all, the tone. The judge seemed to be angry. She used very strong language: ‘It’s wrong,’” says Fisher.
For now, there appear to be competing rules around layoffs, says Fisher.
Barry Fisher
“The whole thing is sad. On the one hand, people should be able to rely on the law but they’ve never been able to rely on the Employment Standards Act. We still see employers and employees every day who say, ‘Well, I was terminated and they gave me my eight weeks. I guess I don’t have anything else because that’s what the statute says.’ Well, that’s not what the law is. You have two layers of common law in Canada,” he says.
But, there probably won’t be an inordinate amount of cases to come, says Fisher, as many employees who were laid off, have now found new work.
“Basically, it just threw a wrench in the mix and I guess we’ll have to wait for the Court of Appeal to figure it out. There’s a lot of money at stake for people who regret settling cases now. I suspect settling cases at this point will be more problematic as the uncertainty always is.”
