In an anti-climactic ruling released May 12,
2022, the Ontario Court of Appeal has returned to the courts below
the question of whether an (alleged) infectious disease emergency
leave (“IDEL”), pursuant to the
Ontario Employment Standards Act, 2000 (the
“ESA”), may nevertheless trigger a
constructive dismissal under the common law.
In April 2021, the Ontario Superior Court of Justice ruled
in Coutinho v Ocular Health Centre Ltd.
(“Coutinho”) that a layoff
implemented for reasons related to COVID-19, which was thus
“deemed” by the ESA to be a statutorily protected
IDEL, was nonetheless still a layoff for common law purposes that
may trigger constructive dismissal. Barely two months later,
a different judge of the same court released a contrary decision
in Taylor v Hanley
Hospitality (“Taylor”),
which was a summary judgement ruling dismissing the
plaintiff's claim (i.e., without a trial), in which
the court also expressly held that Coutinho was
wrongly decided and
