Ontario Courts Split on Constructive Dismissal Rights of Employees on IDEL

A new Ontario regulation temporarily bars employees placed on infectious disease emergency leave (IDEL) from suing for constructive dismissal. However, a case called Coutinho v. Ocular Health Centre Ltd., (2021) ONSC 3076, ruled that an employee on IDEL could still sue for constructive dismissal under common law, i.e., law outside the ESA statute. So, a Tim Hortons’ employee on IDEL tried the same strategy. But this time, it didn’t work. The Coutinho ruling was wrong, said the court. Interpreting the IDEL regulation as leaving the right to sue for common law constructive dismissal would be to render the regulation meaningless—something courts never want to do, especially during times of crisis. Result: The Ontario courts are split [Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 (CanLII), June 7, 2021].