Category: COVID-19

Conflicting Jurisprudence Regarding Whether a COVID-19 Reduction of Wages and/or Hours Amounts to a Constructive Dismissal

For what is not the first time and will not be the last time in Ontario employment law, two different judges of the Ontario Superior Court of Justice have issued conflicting decisions – this time with respect to whether reducing or eliminating an employee’s wages and/or hours during the COVID-19 pandemic, in response to the pandemic, amounts to a constructive dismissal under the common law.

In Ontario, termination entitlements are determined via two sources: legislation or the “common law” (if an employee’s entitlements have not validly been limited to statutory minimums). The common law is not based on written guidelines but instead on prior decisions. On May 29, 2020, the Ontario government enacted O. Reg. 228/20 Infectious Disease Emergency Leave(the “IDEL Regulation”), a regulation that retroactively established an Infectious Disease Emergency Leave (“IDEL”) during the “COVID-19 period” (i.e. from March 1, 2020, and most recently extended to September 25, 2021). Ontario’s minimum standards legislation, the Employment Standards Act, 2000, S.O. 2000, c. 41, was amended to preclude a claim for a statutory constructive dismissal during an IDEL. Therefore, while it was clear that an employee could not pursue a constructive dismissal claim under the ESA for COVID-related reductions in wages and/or hours, it was unclear whether they could still pursue one under the common law.

On April 27, 2021, Justice D.A. Broad of the Ontario Superior Court rendered Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 [Coutinho], a summary judgment decision favourable to employees. After reviewing the relevant IDEL Regulation and ESA provisions, Justice Broad found that the IDEL regulation would apply if the following five conditions were satisfied:

The employee is not represented by a trade union;
The employee is subject to a temporary reduction or elimination in hours of work and/or wages;
It must be the employer that temporarily reduces or eliminates the employees’ hours of work and/or wages;
The temporary reduction or elimination of the employees’ hours of work and/or wages must have occurred for reasons related to COVID-19; and
The above four conditions must occur during the defined COVID-19 period.

In our opinion, based on the wording of the statute, the above five conditions to trigger an IDEL will likely be upheld.

Justice Broad in Coutinho held that absent an agreement to the contrary, a unilateral layoff by an employer amounts to a constructive dismissal. He relied on:

Section 8(1) of the ESA, which says that “subject to section 97 [when employees cannot commence civil proceedings for the same matter], no civil remedy of an employee against his or her employer is affected by this Act”;
An online publication of the Ontario Ministry of Labour, Training and Skills Development which explicitly noted that the IDEL Regulation affects “only what constitutes a constructive dismissal under the ESA”; and
The pre-COVID-19 decision Elsegood v. Cambridge Spring Service 2002 Ltd., 2011 ONCA O.J. No. 6095, which held that absent an agreement to the contrary, an indefinite leave can amount to a termination under the common law.

In Coutinho, despitefully mitigating (i.e. eliminating) her common law damages, the employee was entitled to her statutory minimums for termination.

In contrast, on June 7, 2021, Justice J.E. Ferguson of the Ontario Superior Court of Justice rendered Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”) which explicitly and firmly rejected Coutinho and held that an employee could not pursue a common law claim for constructive dismissal if the employee had properly been placed on an IDEL at any time during the COVID-19 period (as the amendments applied retroactively).

Justice Ferguson relied on the following:

He was of the view that the IDEL Regulation was enacted to ameliorate the impact of the government’s own legislation causing businesses to temporarily close or cut back their operations due to an unprecedented modern pandemic;
Elsegood held that statutes can displace the common law and the common law does not operate independently of the ESA;
If the common law was independent, he believed that the common law should evolve due to the unprecedented regulations and impact on businesses; and
He dismissed s.8(1) of the ESA as merely confirming that the ESA was not the exclusive forum to seek redress for ESA violations.

Notably, Justice Ferguson did not address the Ministry’s online publication. Accordingly, all temporary layoffs relating to COVID-19 (retroactive to March 1, 2020) were deemed to be a statutory leave (IDEL) and therefore subject to leave related rights (e.g. reinstatement rights, benefits continuance). If the conditions for an IDEL leave were met, a common-law termination did not occur.

While employers and management personnel will no doubt be happy with the Taylor decision, we would advise organizations to proceed with caution until the Ontario Court of Appeal provides some much-needed clarity and guidance. It does not appear that either decision has been appealed yet.

The Superior Court of Justice has now rendered directly conflicting decisions. Our employment law team at Devry Smith Frank LLP will continue to monitor the situation closely. If you or your organization have any questions about the IDEL, or any other labour or employment law issue, we would be happy to assist you.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Justin DominicBlog, COVID-19, Employment LawSeptember 21, 2021September 21, 2021

Keep Your Medical Benefits For a Short Term After Your Employment is Terminated

If your employment is terminated, you are entitled to temporarily keep your group or employee benefits, such as medical or drug insurance plans. However, there are a number of important considerations to keep in mind.

How long can I keep my benefits?

The amount of time you will generally be allowed to keep your benefits is a range that depends on how long you were employed. It can be a simple calculation: if you worked for less than one year, you will be able to keep your benefits for one week. If you worked for eight years or more, your benefits will last for eight weeks. It is your employer’s responsibility to continue making payments on your behalf to ensure that you keep your benefits during this time period. This time period is called the “statutory notice period.”

If you become sick or disabled during the statutory notice period (e.g., if you become ill with COVID-19), you remain entitled to your medical benefits. If your illness or disability extends beyond the period, your claim for benefits could possibly extend for as long as the medical issue persists. However, it will be very important for you to be able to prove when the medical issue started.

If your medical issue arises beyond the statutory notice period, you may still be entitled to medical benefits under the “common law notice period.” However, unlike the statutory notice period, there is no simple calculator available to determine how long this period lasts. The Ontario High Court of Justice held that “there can be no catalogue laid down as to what is reasonable notice” (Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC)). The Ontario Court of Appeal declared that calculating this period “is an art, not a science” (Minott v. O’Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA)).

For this reason, it is very important for you to get legal advice to understand your legal rights before accepting a settlement offer. At a minimum, you may wish you consider having a complete medical examination.

“What if I was terminated because I have COVID-19? Or, what if I was terminated because of any other medical condition?”

If the decision to terminate you was influenced by a medical issue—or even a perceived medical issue—your human rights may have been violated and you are entitled to make a human rights complaint.

However, human rights complaint processes and awards are complex. It will be very important for you to get legal advice to understand your legal rights.

Seek Legal Advice

For more information, assistance, or any other questions, please contact our employment lawyers today. Do not delay.

This blog was co-authored by David Heppenstall, Student-at-Law.

By Justin DominicBlog, COVID-19, Employment LawSeptember 13, 2021September 13, 2021

Ontario School’s COVID-19 Vaccination Policies

Months into the rollout of the COVID-19 vaccines, various sectors around the province have begun to implement vaccination policies for high-risk settings. On August 17^th, 2021, the Ontario government announced that the COVID-19 Mandatory Vaccination Policy is required for specific environments, including post-secondary institutions and school employees. The policies include proof of full vaccination status or regular antigen testing, among others. Ontario has also now mandated, as of September 1^st, 2021, that evidence of the COVID-19 vaccine is required for select settings.

The Ministry of Education will begin to introduce a vaccination disclosure policy for the 2021-2022 school year for publicly funded school board employees, private school staff, and all licensed child care facilities staff. Many Ontario Universities and Colleges have announced the same, requiring students and staff to show proof of vaccination. The educational school systems in the Greater Toronto Area include Toronto, York Region, Peel, and their Catholic School System counterparts. At this time, there is not a vigorous policy for COVID-19 vaccinations for students, only for their respective staff. This could, however, quickly change, pending approval on those individuals under age 12. Ontario Ministry of Health provides as current law that, unless there is a valid exemption, all children who attend a primary or secondary school must be immunized against a list of vaccines available as per the Immunization of School Pupils Act, R.S.O. 1990, c. I.1. The Toronto District School Board (TDSB) has asked that the Ontario Government make the COVID-19 vaccinations mandatory for all school children aged 12 and up.

The Toronto District School Board (TDSB) has developed a mandatory COVID-19 vaccine procedure that requires that all TDSB staff, trustees, and visitors disclose and provide proof of vaccination status and require them to be fully vaccinated. However, if you are not vaccinated, TDSB will comply with all human rights obligations to accommodate employees legally entitled to any accommodation. Those individuals will be subjected to an education on the benefits of vaccination. These are subjected to change after September 9^th, 2021. Similarly, various colleges and universities across Ontario are requiring those not vaccinated to attend a mandatory information session on the positives of the vaccine. This too may change but is in place for now to follow.

Possible Exemptions to Potential Policies:

Ontario’s Health Protection and Promotion Act R.S.O. 1990, Chapter H7 allows a Medical Health Officer the ability to restrict students from attending school to prevent the spread of certain diseases. It is also now possible in Ontario to expel a student aged 8, the equivalent to grade 3 or below if this student potentially poses a risk to the safety of those at their respective school.

While policies continue to update for adults, there is still no clear indication of whether Ontario school systems will include the COVID-19 vaccine for students amongst the list of mandatory vaccines required to attend school. With students expected to be back in class full time starting the fall semester, Ontario school systems will have to outline policies and exemptions for students who are eligible to be vaccinated, the same which was done for those unable to wear a mask or other face covering. Parents can provide a valid exemption for non-vaccination for their children under the Immunization of Schools Pupil Act, R.S.O. 1990, c.I.1.

COVID-19 Consequences for Children at School:

Ontario schools are not typically liable for damages within school boundaries. If your child does contract COVID-19, it would be difficult to prove that this happened at school itself. This would also include proving negligence beyond reasonable doubt by your child’s school as per the policies set forth by the Ministry of Education and the Ontario School Board policies.

While this unprecedented time for teachers, parents, and students has left little reassurance, with the start of the 2021-2022 fall semester, there are expected to be updated policies and procedures.

To discuss your COVID-19 policy concerns for you or your children or if you feel that you may be entitled to compensation for negligence by your child’s school, please contact Education Lawyer Katelyn Bell, or you can phone her to discuss at 416 446-5837 for any assistance with this matter.

*This blog was co-authored by Angela Victoria Papeo*

By Justin DominicBlog, COVID-19, Education LawSeptember 8, 2021September 17, 2021

Student’s Rights During Covid-19

School systems in Ontario have seen challenges over the last several years regarding funding allocations and other additional issues that come along when discussing a large-scale academic school system like most school boards in Ontario. These issues are even more prevalent when discussing the massive Peel and Toronto Public and Catholic School systems. These challenges are now exemplified when discussing the additional funding and protocol now required by school boards to be compliant with government, and Minister of Education, Stephen Lecce’s regulations. Minister Lecce announced on August 3, 2021, via Twitter, that students will be #backtoclass full time in the fall (via @sflecce, Minister Lecce’s Twitter hashtag used to announce in-person learning). This plan includes additional mental and physical health support as well as restoring physical education, sports, and other important activities that are essential to Ontario’s youth development.

Although Minister Lecce has a fantastic and exciting plan to bring Ontario Students back to school, questions regarding the pandemic and the fear of future Covid-19 outbreak waves have left parents with a significant amount of ambiguity regarding the idea of their children’s rights once they return to in-person learning at their respective schools in the fall. One of the most common and important questions that most parents are asking at this time is what rights do my children have in the school system?

Does my child have to go back to school? Does the school have to accept them?

If you are questioning if your child can be forced to stay home, the answer is yes. Ontario’s Health Protection and Promotion Act R.S.O 1990, Chapter H7 authorizes a Medical Officer of Health to order any person to refrain from school to prevent any spread of disease. Although before it was not possible to expel a student in grade 3 or below, in August of last year, the Ontario government gave school officials (not only Principals) the right to remove any student indefinitely if they believe the student poses any risk to the safety of anyone in the school.

It’s important to note that even though the pandemic has often left parents in the dark, children in Ontario school systems still have rights that can still be enforced by parents and guardians. Unfortunately for parents, there is no law stated in Ontario that a student has to attend the school closest to their home. This is why the province has the right to convert students to at-home learning, especially when discussing special needs or safety concerns.

What about contracting COVID-19?

If your child contracts Covid-19 while at school, schools are usually not liable for damages. In addition to that, it will be difficult to prove that a child did contract Covid-19 from the school itself, and not at any other places. Also, there will have to be negligence on the school’s behalf. Meaning that the school must fail to have done something that it is required to do pursuant to the Ministry of Education and Ontario School Boards’ Covid-19 protocols. If the school fulfills all the mandated recommendations and a child still contracts Covid-19, it will be very difficult for the court to find the school liable.

If you still believe that your child is entitled to damages, then the child must have received some sort of permanent damage and prove that they received permanent damage from Covid-19 caused directly by the negligence of the school which breached Covid-19 protocol. This may be difficult to prove in the immediate future.

Staying home has its consequence too:

Questions now are arising due to growing concerns of mental illness and delayed social development of children who are not in schools for in-person learning. It is important to note that not sending a child to school for in-person learning is not a zero harm option. There are additional implications that can come into play when a child is kept at home without contact with any classmates and does not experience a classroom and social environment.

If you believe that your child’s rights are not being considered by their school board, or that you may be entitled to compensation for negligence by your child’s school, please contact Devry Smith Frank LLP Lawyer Katelyn Bell or call her at 416 446-5837 for assistance with this matter.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Justin DominicBlog, COVID-19, Education LawAugust 10, 2021August 21, 2021

An Update on COVID-19 Travel Restrictions

As vaccination rates increase in Canada, and COVID-19 infection rates decline, the Canadian government is gradually relaxing its strict travel restrictions and quarantine requirements. Prior to this past July 6^th, Canada’s borders were closed to all discretionary non-essential travel, with limited exceptions, and those who were permitted to enter were subject to a 14-day quarantine requirement, regardless of vaccination status, also with limited exceptions. Those entering Canada by air were also subject to a 3-day stay in a government-authorized hotel.

Effective July 6^th, all individuals permitted to enter Canada for an essential non-discretionary purpose, or due to an exemption, who have evidence of being fully vaccinated, together with a negative PCR test obtained within 72 hours prior to coming to Canada and are asymptomatic, are exempt from the quarantine requirement, including the hotel stay. To be considered fully vaccinated, the traveler must have received the full series of a vaccine or a combination of vaccines that are accepted by the Canadian government, and the last vaccine must have been administered at least 14 days prior to entering Canada. Individuals who cannot be fully vaccinated due to a health condition may also qualify for the eased quarantine and testing requirements currently available to fully vaccinated travelers but must follow a modified quarantine.

Commencing August 9^th, United States permanent residents and citizens who are residing in the U.S. are allowed to enter Canada for non-essential discretionary travel. Thus, as of the date of this blog, U.S. citizens and permanent residents who are fully vaccinated may enter Canada for any purpose on a quarantine-exempt basis. Also, effective August 9th, all travelers to Canada by air, who remain subject to the quarantine requirement, will no longer be required to stay in a government-approved hotel, which requirement has been eliminated.

All travelers, whether or not fully vaccinated, must provide COVID-19 related information electronically, prior to traveling, through the ArriveCAN app or web version, meet all pre-entry testing requirements, be asymptomatic upon arrival, and have a paper or digital copy of their vaccination documentation in English or French to present to government officials on request.

Provided that Canada’s COVID-19 situation remains favourable, the Canadian government has announced its intention to open Canada’s borders for non-essential discretionary travel to all international travelers effective September 7^th. At that time travelers to Canada from anywhere who are fully vaccinated and who meet specific entry requirements will be able to enter Canada freely.

As a final note, the current rules governing entry into the U.S. are very different and non-reciprocal from Canada. To summarize: anyone who has been in Canada for 14 days prior to travel by air to the U.S., has been able to do so throughout the pandemic without needing to demonstrate an essential non-discretionary purpose. However, at the land border, the U.S. still requires an essential non-discretionary purpose for entry with limited exceptions, notwithstanding Canada’s new policy to admit U.S. citizens and permanent residents for any purpose, as described above. With respect to quarantine, the U.S. did not have any such requirement on the federal level throughout the pandemic, however, certain states imposed a quarantine requirement at different times.

Should you require additional information about the current state of the law in Canada or the U.S., or upcoming changes, please contact the firm’s immigration group.

By Justin DominicBlog, COVID-19, ImmigrationAugust 9, 2021August 9, 2021

Ontario Regulation Governing Excess Soil Management

The province of Ontario has implemented the On-Site Soil Management Regulation (Regulation 406/19) to ensure the best management of excess soil from construction projects. Phase 1 of Ontario’s on-site soil management project came into effect on January 1^st, 2021. The soil that is affected by this regulation is any soil that has been excavated from a construction site. The purpose of the regulation is to ensure that the most amount of soil is reused on a future construction site. The goal ultimately from the province is to reduce the amount of soil that is designated as waste.

Ontario’s On-Site Soil Management Regulation (Regulation 406/19) regulation project is to ensure that resources from a job site are not poorly wasted and the materials are able to see their full reuse potential. When the province refers to “Excess Soil”, it is talking about soil, including soil that includes rocks that have been excavated from a project area. This does not include hazardous soil, or soil from a pit, quarry, or aggregate site. The soil also must be dry soil that is intended to be deposited at a reuse site.

The On-Site Soil Management Regulation (Regulation 406/19) does exempt projects from the regulation, but most construction sites that include excavation will have to follow the government regulation without exemption.

There are exemptions from the documentation that is required under the regulation. These exemptions include soil that has been removed from an agricultural site within the meaning of Ontario Regulation 153/04, and when the project area for removal is a parkland, regulation use, or institution use within the meaning of the Ontario regulation 153/04. When the project leader knows that the soil has been affected by contaminants, the exemptions do not apply.

The process set out by the government covers several phases of soil management, but the primary requirements are: ensuring that there is an assessment of past uses; there is a proper sampling of the current soil on-site; completing a Soil Characterization Report; assessing the destination of soil in the soil destination report, and using the Tracking System to ensure that each load of excess soil reaches the pre-approved destination.

The assessment of past uses is to ensure that contaminated soil is located and that it is remediated and sent to the proper recycling location and does not end up at a soil reuse site, as hazardous materials are not included in this Ontario Regulation. This step is the key feature of the On-Site Soil Management Regulation by the province. The purpose of this is to ensure that a qualified person is able to gain an initial idea of the quality of soil that is on the site and to identify all of the available reuse sites.

A Qualified Person as per Ontario Regulation 153/04, a person meets the qualifications to be a qualified person if the person holds a license, limited or temporary license with the Professional Engineering Act, or the person has a certificate of registration under the Professional Geoscientists Act, 2000 and is a practicing, temporary or limited member of the Association of Professional Geoscientists of Ontario.

The Sampling and Analysis Plan is when a Qualified Person assesses the characteristics of the soil to ensure that once the soil is fully understood, there is no need to adjust the original plan set out from the assessment of past use. Sampling and analysis are essential for the soil characterization report to ensure that there is a laboratory understanding of the project area.

The Soil Characterization Report is the final report to explain the quality of soil that was sampled and tested by the Qualified Person working on the project. In this report, the Qualified Person will set out the narrative of the project area by featuring a site plan and valid laboratory certification.

The Tracking System will ensure that the project’s soil reaches all of the pre-approved soil reuse destinations that were set out in the Soil Characterization Report. This is for the final confirmation that the reuse plan reaches its full potential to ensure that no possible soil that is destined to be reused is sent to a waste facility.

Although these challenges may seem like a large amount of additional work for all the project managers that are managing the excavation portion of the project, it is essential to ensure that these steps are taken to ensure that there is minimal waste sent to waste facilities. In conclusion, the priority of the legislation is to ensure that excess soil management is managed to the best of its possibility and that there are not valuable resources being wasted and contaminates are not mismanaged.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Justin DominicBlog, Construction Law, COVID-19July 28, 2021August 21, 2021

Enforceability of Mandatory COVID-19 Vaccination Policies in the Workplace

To date, Canada’s federal and provincial governments have not introduced any legislation which would require all eligible individuals to be vaccinated against COVID-19. However, would a mandatory vaccination policy introduced by an employer be legally enforceable? If employees refuse to get vaccinated, would an employer be justified to prohibit the employee from attending at the workplace, to place them on an unpaid leave of absence, or to terminate their employment or otherwise discipline the employee? In addressing this issue, there are two competing interests.

Health and Safety Concerns of Employers

On the one hand, an employer must take reasonable steps to maintain a safe working environment. This includes taking measures to protect its employees from contracting COVID-19. For example, employers must follow the current public health advice with respect to physical distancing, masking, and daily COVID-19 screening of employees. An employer may argue that since the evidence demonstrates that all approved COVID-19 vaccines in Canada are highly effective at reducing one’s chances of contracting the virus, and have a low risk of causing serious side effects, requiring all employees to be vaccinated is a reasonable step to prevent a COVID-19 outbreak in the workplace.

Human Rights and Privacy Concerns of Employees

On the other hand, the Ontario Human Rights Code prohibits employers from discriminating against employees based on several grounds, such as disability and religion, up to the point of undue hardship. For example, if an employee is unable to be vaccinated for medical reasons, the employer would have an obligation to provide a reasonable accommodation to the employee. Examples of such accommodations would include permitting the employee to work from home, or permitting the employee to attend at the employer’s premises, provided that they physically distance and/or wear a mask at all times.

Further, some employees may not wish to disclose their vaccination status to the employer, on the basis that this information constitutes personal health information. An employee’s vaccination status does likely constitute personal health information under privacy legislation. However, requesting that an employee disclose their vaccination status in the interest of maintaining a safe and COVID-19 free workplace may be permissible, as long as the employer has a policy in place which sets out why the information is being collected, how the confidentiality of the information will be protected, who will have access to it, the purpose for which it will be used, where it will be stored, and the period of time for which it will be kept by the employer.

Which will prevail?

The courts have not yet addressed the issue of whether mandatory vaccination policies will be enforceable. It will likely depend on the type of workplace and the job duties of the employees in question.

In an office setting, employers will likely be able to accommodate most employees who refuse to get vaccinated on the basis of a protected Human Rights Code ground. For example, employees may be permitted to work from home, to work in a relatively isolated area of the office, and/or be required to wear a mask. Where such accommodations would be reasonable, an employer would likely not be justified in terminating or otherwise disciplining an employee who refused to get vaccinated.

However, a mandatory vaccination policy for health care workers at retirement homes or hospitals, who generally cannot work from home, is more likely to be enforceable. Many patients at hospitals and elderly residents would be considered “high risk” if they contracted COVID-19 and would be vulnerable to contracting the virus from an unvaccinated employee with whom they would be in regular contact. Physical distancing is likely not possible at all times and in many cases, wearing a mask would be insufficient protection for other employees, residents, and patients.

In a situation where an employee makes a personal choice not to get vaccinated for a reason that would not be protected by the Human Rights Code (such as general vaccine hesitancy or belief in conspiracy theories), in certain workplaces the employer may be permitted to place the employee on an unpaid leave of absence until the pandemic has ended or even terminate the employee for failing to comply with the employer’s vaccination policy.

As we continue to gain scientific knowledge about COVID-19 and its variants of concern, the effectiveness of the various COVID-19 vaccines, and their possible immediate and long-term side effects, the enforceability of mandatory vaccination policies is likely to change. On the one hand, if certain COVID-19 vaccines prove to be even more effective than previously thought of preventing serious and/or fatal cases of COVID-19, then mandatory vaccination policies will be more likely to be held enforceable. On the other hand, if the vaccines ultimately prove to be less effective than initially thought, and/or they can be linked to more severe side effects, mandatory vaccination policies will be more likely to be held unenforceable.

The courts will eventually be required to determine where to draw the line between the health and safety concerns of employers and the human rights and privacy concerns of employees. Each case will be determined on its specific facts.

If you have more questions about your employment law or human rights matter contact Marty Rabinovitch at 416-446-5826 or marty.rabinovitch@devrylaw.ca

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

By Justin DominicBlog, COVID-19, Employment LawJuly 6, 2021September 9, 2021

New Ontario Superior Court Decision holds that COVID-19 related Temporary Layoffs do not Amount to Constructive Dismissal at Common Law – Taylor v Hanley Hospitality Inc., 2021 ONSC 3135

In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”). The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave (“IDEL”). Section 7 of the Regulation states that a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 will not constitute constructive dismissal during the “COVID-19 period”, which was recently extended until September 25, 2021.

The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law. As discussed in our previous blog about Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) (“Coutinho”), the Court determined that the Regulation did not prevent the plaintiff, who had been temporarily laid off during the COVID-19 period and was on deemed IDEL under the ESA from pursuing a claim for constructive dismissal at common law. Under the common law, unless expressly stated in an employment contract, an employer does not have the right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. In accordance with Coutinho, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages.

However, in Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”), the court came to the opposite conclusion. In this case, an employee was placed on temporary lay-off in March 2020 due to the closure of her workplace during the pandemic. The plaintiff commenced an action against the employer claiming damages for constructive dismissal at common law. The employer relied on Section 7 of the Regulation and argued that the employee was deemed to be on IDEL and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law.

The Ontario Superior Court of Justice was asked to again consider whether an employee who had been temporarily laid off due to COVID-19 and was on deemed IDEL under the ESA had been constructively dismissed at common law.

Constructive Dismissal at Common Law

In contrast to the decision in Coutinho, the Court in Taylor determined that there was no constructive dismissal at common law. The Court held that it was clear that the Regulation was enacted to displace the common law with respect to constructive dismissal and layoffs, since all temporary layoffs relating to COVID-19 are deemed to be IDELs, retroactive to March 1, 2020 until the end of the COVID-19 period. As such, employees who were placed on IDEL were not constructively dismissed at common law.

The Court disagreed with the analysis in Coutinho, stating that Coutinho failed to properly apply the principles of statutory interpretation. In particular, Coutinho had improperly interpreted Section 8(1) of the ESA to mean that the ESA may not displace the common law. The Court referred to the Court of Appeal’s reasoning in Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 (CanLII), in which the court expressly concluded that “Simply put, statutes enacted by the legislature displace the common law” and that it is incorrect to presume that the common law continues to operate independently of the ESA.

Conclusion

The decision in Taylor is in direct conflict with Coutinho and creates uncertainty as to whether employers would be liable at common law for constructive dismissal in relation to COVID-19. While Taylor provides relief for employers that have relied upon IDEL, the decision leaves the state of the law ambiguous for constructive dismissal claims at common law. It is very likely both of these decisions will be appealed and that the Court of Appeal for Ontario (the highest court in Ontario) will ultimately be asked to resolve this inconsistency in the law.

By Justin DominicBlog, COVID-19, Employment LawJune 15, 2021June 15, 2021

What if separating parents disagree over vaccinating their children?

Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses?

The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child’s best interests.

Court decisions dealing with children’s pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada’s public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child’s vaccination.

In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population.

The court’s reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child’s best interests. This would likely need to be accomplished by way of a credible expert’s opinion with respect to the specific child’s needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines.

If you have any questions related to your family law matter contact Mason Morningstar at mason.morningstar@devrylaw.ca or 416-446-3336.

By Justin DominicBlog, COVID-19, Family LawJune 8, 2021June 8, 2021

Be Prepared for In-Person Medical Examinations – Personal Injury: Mierzejewski v Brook, 2021 ONSC 2295

During the COVID-19 pandemic, many in the legal profession began transitioning their practice online with the widespread use of Zoom for hearings, trials, examinations for discovery, etc. However, the courts may require plaintiffs to attend in-person medical examinations in personal injury cases despite public health concerns.

In Mierzejewski, the defendant brought a motion seeking an order compelling the plaintiff to attend a neuropsychology defence medical examination and a physiatry defence medical examination, both of which would be conducted in person. The plaintiff did not agree to attend a neuropsychological examination on the basis that she did not place any brain injury or head trauma at issue. While the plaintiff agreed to the physiatry examination, the main issue was the form that the examination will take. The plaintiff argued against attending an in-person medical examination, citing the ongoing COVID-19 pandemic and her compromised health situation which included a heart attack and subsequent heart surgery in 2016, breast cancer in 2017, and a lumpectomy in 2018. The plaintiff does not leave her home unless necessary.

The Ontario Superior Court was asked to consider whether the plaintiff must attend the neuropsychological medical examination and if so, whether the plaintiff must attend both medical examinations in person.

Physiatry Examination

The plaintiff argued that her numerous health conditions placed her in the high end risk category to contract COVID-19 and suffer serious health consequences. One of the plaintiff’s doctors advised that physiatry examinations could not be completed virtually and it would be irresponsible for the plaintiff to attend an in-person medical examination given the plaintiff’s numerous health concerns. He cited public health recommendations to those with chronic conditions to limit physical contact with others outside of their residence.

The Court noted that since the trial was scheduled for June 2021, the examination could not be postponed until the pandemic improved. Citing Severin v Barker, 2020 ONSC 7784, the Court stated that a plaintiff who is required to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the plaintiff where the examination is to be conducted with COVID-19 safety protocols in place. The plaintiff had attended numerous necessary medical and legal appointments in person during the pandemic. The Court further noted that the medical assessment centre had extensive COVID-19 protocols in place including COVID-19 screenings, temperature checks, socially distanced waiting rooms, and the use of PPE. Given the presence of extensive COVID-19 safety protocols at the assessment centre, the Court ordered that the plaintiff must attend the physiatry examination in person.

Neuropsychological Examination

The plaintiff submitted that a neuropsychological examination would not be relevant as she did not put her neurocognitive state at issue on the basis that she did not complain of any head injuries, neurocognitive problems, post concussion symptoms, or psychological problems.

The Court referenced the plaintiff’s statement of claim which stated that the plaintiff suffered serious and permanent impairment of important mental and psychological functions, including but not limited to headaches, dizziness, depression, and memory difficulties. The Court also noted several medical reports from the plaintiff’s doctors which indicated that the plaintiff suffered from psychological problems, pain disorder with psychological factors, and chronic pain as a result of the accident. In assessing the plaintiff’s pleadings, the Court concluded that the plaintiff had put her cognitive state in issue and ordered a neuropsychological examination. Citing Severin and the neuropsychologist’s statement that he could not conduct a virtual neuropsychological assessment, the Court ordered the plaintiff to attend an in-person neuropsychological examination.

Conclusion

The Ontario Superior Court’s decision is concerning given the significant health and safety concerns for at-risk individuals during the COVID-19 pandemic. Studies from the Guidelines for Best Practices in Psychological Remote Assessments from the OPA/CAPDA indicate that remote psychometric testing is just as effective as in-person testing. The reports also note that psychological services and assessments can be conducted effectively through online platforms with some modifications or alternatives for fully remote procedures. Plaintiffs should consider alternative assessment models when faced with an insistence that the plaintiff attends an in-person examination during the COVID-19 pandemic.

If you have a specific question related to your personal injury matter contact Marc G. Spivak, managing partner of the personal injury group at marc.spivak@devrylaw.ca or 416-446-5855.

By Justin DominicBlog, COVID-19, Personal InjuryMay 19, 2021May 19, 2021

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