Throughout the Covid-19 pandemic, many employers have been
forced to temporarily lay employees off because of unexpected
business disruptions and/or shutdowns. After over a year of media
articles, commentary and legal webinars, employers are likely aware
that a temporary layoff is presumptively a "constructive
dismissal" at common law, which means potential employee
lawsuits seeking pay in lieu of reasonable notice of
termination.
Arguably in an attempt to address that issue, the provincial
government issued a regulation which stated that employees on
temporary layoffs were deemed to be on a new category of
job-protected leave of absence (infectious disease emergency leave,
or "IDEL") under the Employment Standards Act,
2000 (the "ESA"), and which effectively
stated that an employee on a temporary layoff was not
constructively dismissed (the "Regulation"). However, the
question was whether this legislation limited an employee's
ability to allege constructive
