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Background
As the pandemic lingers on in Canada, the legal consequences of
many of the statutory changes made by governments are beginning to
be litigated in court.
On March 19, 2020, the Ontario
Employment Standards
Act, 2000 (ESA) was amended to include infectious disease
emergency leave (the IDEL), retroactive to January 25, 2020.
Amongst othe things, the IDEL granted a statutory leave to
employees who were exposed to COVID-19 and needed to quarantine. On
May 29, 2020, the Ontario government extended the application of
the IDEL and had it apply to all employees who had been laid off
due to COVID-19. Those employees were deemed to be on IDEL
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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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