On May 12, 2022, the Ontario Court of Appeal (OCA) released its long-awaited decision in Taylor v. Hanley Hospitality Inc., 2022 ONCA 376 (Hanley (OCA)). The employee appealed the decision of Ontario’s Superior Court of Justice (SCJ) in Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 (Hanley (SCJ)), which provided that Ontario Regulation 228/20 (IDEL Regulation) made under the Employment Standards Act, 2000 (ESA) precludes an employee who was laid off during the pandemic from claiming constructive dismissal at common law.
The IDEL Regulation provides that an employee in a non-unionized workplace who, any time during the “COVID-19 period” does not perform the duties of their position because their work hours are temporarily reduced or eliminated by their employer for reasons related to COVID-19, is deemed to be on Infectious Disease Emergency Leave. The IDEL Regulation amends layoff and constructive dismissal rules under the ESA, and in most cases, eliminates temporary layoffs and the risk of a constructive dismissal claim under the statute for the defined “COVID-19 period.” The end date of the COVID-19 period has been extended several times, most recently to July 30, 2022.
The OCA allowed the appeal, set aside the order of the SCJ, and remitted the action for determination before another judge in the SCJ. As a result, the question whether the IDEL Regulation precludes an employee who was laid off during the pandemic from claiming constructive dismissal at common law was...
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