Does A COVID Leave Trigger Constructive Dismissal? Third Case Further Muddies The Waters

A couple of weeks ago, we wrote on the decision in Taylor v Hanley Hospitality Inc. ("Taylor"), in which a judge in the Superior Court found that Ontario's Infectious Disease Emergency Leave ("IDEL") did not trigger a constructive dismissal at common law, and that the earlier decision of another judge finding that it did, Coutinho v Ocular Health Care Ltd. ("Coutinho"), was wrongly decided.  

Normally, an employer must have a contractual right to layoff an employee (which is permissible up to certain time limits defined in the Employment Standards Act, 2000 ("ESA")), otherwise the layoff is deemed a termination and the employee can sue the employer for constructive dismissal. In 2020, the Ontario government introduced a new regulation under the ESA which stated that any layoff resulting because of the COVID-19 pandemic was instead deemed an IDEL.