Labour & Employment Law Blog

Layoff due to COVID? Ontario’s Court of Appeal Needs to Provide Some Answers

Layoff due to COVID? Ontario’s Court of Appeal Needs to Provide Some Answers

The Ontario courts are continuing to grapple with the question about whether or not an employee can claim constructive dismissal under the common law when laid-off by their employer due to the COVID-19 pandemic. However, unsurprisingly, it is becoming more and more unclear as we now have decisions that are contradictory to each other. At this point, the Ontario Court of Appeal needs to provide more clarity.

To remind our readers, the Ontario government has enacted the Infectious Disease Emergency Leave O. Reg. 228/20 (“IDEL”) regulations. The purpose of IDEL is to temporarily protect employers from claims of statutory notice or severance by employees under Ontario’s Employment Standards Act (“ESA”) when the employer has laid off the employee due to a downturn in business caused by the worldwide COVID-19 pandemic. The problem that immediately became apparent to lawyers was that it was unclear if IDEL also blocked claims for notice under the common law.  These questions have not been clarified by the Ontario courts, as you will see below.

The first case that came out was Coutinho v. Ocular Health Centre, 2021 ONSC 3076.  You can read our blog about that case here. The court ruled in Coutinho that the IDEL did not affect an employee’s right to pursue a civil claim for constructive dismissal against an employer at common law. It is important to note that this outcome was commensurate with the prevailing jurisprudence that already existed. We already have a long line of cases setting out that any layoff, even a temporary one, will constitute constructive dismissal at common law unless there is clear language in the employment contract permitting layoffs.

Then came Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135. You can read our bog about that case here. A different judge specifically rejected the ruling in Coutinho holding that the government’s regulations displaced the common law. So Taylor would bar employees from asserting constructive dismissal under the regulatory regime not only for the purposes of the ESA or IDEL but the common law also.

However, now we have Fogelman v. IFG, 2021 ONSC 4042. Fogelman was decided by way of a motion for summary judgment where the plaintiff claimed constructive dismissal because he was laid off by the defendant employer due to the COVID-19 pandemic. The plaintiff was explicit that he was relying on civil remedies at common law. Further, the employer did not have an employment contract with the plaintiff that would allow for a lay off. As such, the judge held that IDEL does not apply to the plaintiff’s case and he was free to claim constructive dismissal.

Interestingly, the judge in Fogelman awarded the plaintiff employee punitive damages against the employer. The judge had great dislike for the employer’s “hardball” tactics against the plaintiff and set out that the employer “did not behave” well with the plaintiff. In fact, the employer had done certain things like evading service of the statement of claim in an effort to frustrate the plaintiff’s efforts in proceeding with his lawsuit. However, what is more noteworthy is that the judge also set out that punitive damages were appropriate because the employer had refused to provide the plaintiff with any statutory entitlements under the ESA once it received notice that the employee considered the lay-off to be constructive dismissal. In fact, the judge set out in paragraph 120 that “employers cannot be permitted to ignore their obligations under the ESA while awaiting the outcome of a court proceeding where the termination was conceded to be without cause.” The judge held that it is critical that the courts protect the statutory rights of employees, especially in these harsh economic times.

Our Thoughts 

There is very much a lack of clarity with respect to these issues. At this point the jurisprudence is giving off a “wild west” sort of feeling where anything goes. There are now two court decisions that stand for the proposition that IDEL does not interfere with an employee’s right to claim constructive dismissal under the common law. However, there is one court decision that stands for the proposition that IDEL does interfere with the right to claim constructive dismissal and would bar employees from claiming constructive dismissal under the common law. The Court of Appeal needs to step into this foray to provide clarity on these issues.

We would also be interested to see if the Court of Appeal addresses the issue of the punitive damages award in the Fogelman case as well. The judge seems to be setting out that if the employer fails in their obligations under the ESA then they would be liable for punitive damages and that punitive damages may even be greater given the COVID pandemic. This may be problematic for employers because the question of whether employees are entitled to compensation, including under the ESA, is often a legitimate point of contention especially in cases of constructive dismissal. In consequence, employers should not be penalized for raising legitimate arguments in that regard unless, of course, ESA pay is withheld intentionally or there is some form of flagrant or outrageous conduct involved.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.