Monday, 7 June 2021

Infectious Disease Emergency Leave *Does* Oust Common Law Constructive Dismissal

Does Infectious Disease Emergency Leave under the Employment Standards Act, 2000, S.O. 2000, c.41 oust the common law of constructive dismissal or were employees ostensibly placed on leave actually terminated?

If that question sounds familiar, it is because that is the question answered by the case of Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII), about which I blogged in my post Infectious Disease Emergency Leave Does Not Oust Common Law Constructive Dismissal.

Problem is, there is a new decision, Taylor v Hanley Hospitality Inc, 2021 ONSC 3135, which reaches the opposite conclusion.


Candace Taylor worked for a Tim Hortons operated by the defendant. On March 27, 2020, she was temporarily laid off from employment. On August 18, 2020, she was notified of her recall to employment effective September 3, 2020. She did, in fact, return. She was still employed by Tim Hortons when the case was heard in 2021.

Notwithstanding the technicality that she was still actively working for her employer, Ms. Taylor advanced the argument that she had been constructively dismissed. (I admit this fact confuses me the most and is an issue not addressed by the court’s decision.)

Decision of the Ontario Superior Court

After reviewing the legislative changes brought in response to COVID-19, including the changes to the ESA and O. Reg. 228/20, Justice Jane Ferguson of the Ontario Superior Court of Justice provided the following reasons for her decision to dismiss the plaintiff’s claim. (Paraphrased because the decision is not yet on CanLII)

[19] All temporary layoffs relating to COVID-19 are deemed to be IDELs. Ms. Taylor was not “laid off” she was placed on IDEL.

[21] (i) I agree with the defendants that no matter which authority one wants to consider on the point, it offends the rules of statutory interpretation to give an interpretation that renders legislation meaningless.

[21] (ii) Coutinho never addressed the consequential analysis – what does IDEL and the Regulation actually mean if not what Tim Hortons says it means?

[21] (iv) The Court have never said that the Act does not or cannot displace the common law… (viii) S. 8(1) does not prevent the Act from displacing the common law. The Court of Appeal has held that statutes displace the common law, in a case dealing with the ESA.

[21] (v) If we paraphrase and apply the reasoning of the Court of Appeal in Elsegood to this case we get:

  • The employee was on a leave of absence (IDEL) for all purposes;
  • The employee was deemed not to be laid off for all purposes;
  • The employee was not constructively dismissed for all purposes;
  • The employee cannot be on a leave of absence for ESA purposes and yet terminated by constructive dismissal for common law purposes. That is an absurd result.

[21] (ix) One should not forget that the common law evolves as the changing times make it necessary to do so.

[21] (xiv) Even though we would be in a situation where there are conflicting decisions on the law, the court should not follow Coutinho if the court is of the view that it was wrongly decided.

[21] (xvi) The law would be better served by a decision that applies common sense and the rules of interpretation to reach the conclusion sought by the defendant.

[22] I agree with Tim Hortons that exceptional situations call for exceptional measures. The Ontario Government recognized the inherent unfairness in subjecting employers to wrongful dismissal claims as a result of the government imposing a state of emergency. If they did not take action, these claims would only serve to make the economic crisis from the pandemic even worse. It is just common sense.


I don’t like this decision. On its face, I think it is wrong and Coutinho is correct.

Absent the comment about the common law evolving to meet the times, I would think it totally incorrect. But there is some allure to the idea that the court can essentially create and abolish common law rights as it deems appropriate.

And I get the economic arguments. I appreciate the point that if every employee claimed constructive dismissal and made claim for severance, rather than taking a ‘wait-and-see,’ ‘we’re all this together’ approach, then employers would have had a much rougher go.

But… that’s not what employment law, nor the ESA are about.

Plus, even if I agree that the statutory law, i.e. the Employment Standards Act can oust the common law, what of the fact that the displacement of common law rights actually resides in the regulation, not the Act itself? (A fact canvassed in Coutinho, but not here.)

I still think Coutinho and its section 8 analysis is correct. But, I guess we’ll have to wait to see what the ONCA says.

Contact Me

Have questions about the right to layoff, infectious disease emergency leave, or your rights or obligations with respect to COVID? I can help.

I can be reached by email at or by phone at 613.238.6321 x233.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.


  1. I agree your thinking is correct, Sean. Section 8(1) clearly states an employee is not denied a civil remedy, ie. a common law action. Nova Scotia Labour Standards Code Section 6- Effect of Act - basically states this code exists along side your already existing common law rights. If your common law rights in a civil proceeding are better for you in a civil action, use them.

  2. @Sean, the wording of the ESA has been dealt with previously by the Supreme Court of Canada. See Machtinger v. HOJ Industries Ltd,[1992] 1 SCR 986. Section 8(1) as it is now, was then Section 6. Please see the Conclusion and Disposition of the Machtinger case.The plain meaning of ss.3, 4 and 6. etc. etc., the appeal should be allowed. My humble opinion only, Coutinho decision is correct.