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ARTICLE · 07 MAY 2021

Infectious Disease Emergency Leave Does Not Shield An Employer From Constructive Dismissal At Common Law

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A recent decision of the Ontario Superior Court has dealt yet another blow to employers in the wake of the ongoing COVID-19 pandemic.

CanadaEmployment and HR
David Cassin
David Cassin
Carl Cunningham
Carl Cunningham
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A recent decision of the Ontario Superior Court has dealt yet another blow to employers in the wake of the ongoing COVID-19 pandemic. The decision of Justice D.A. Broad in Coutinho v Ocular Health Centre, released April 27, 2021, is the first to interpret the recently enacted O. Reg. 228/20 Infectious Disease Emergency Leave (the "IDEL regulation") and determine the effect of the IDEL regulation on claims of alleged constructive dismissal at common law.

In dismissing the employer's motion for summary judgment, the Court found that where an employer places an employee on a temporary leave under the IDEL regulation, the leave could nonetheless constitute a constructive dismissal at common law, and does not restrict the employee's right to pursue a common law action for constructive dismissal against his or her employer.

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