In the world of employment law, 2021 was a year of contrasts. Where some areas saw seismic shifts in the way the law was to be applied, others saw only incremental changes at most. Still others saw no change whatsoever – despite a pressing and substantial need for answers.
The seemingly endless COVID-19 Pandemic continues to occupy discussion, headlines, court dockets, arbitration schedules, and of course, blog posts. Things continue to move forward, irrespective of the pause to the world created by the COVID-19 Pandemic. The law continues to evolve and grow by means of court decisions and legislation.
What follows is a review of the important human resources law related developments in the law and society which took place over 2021 and what these might mean for the Canadian employment law landscape. We have divided the review into three sections:
- The Pandemic and the Law;
- Employment-Related Legislation; and
- Developments in the Courtroom
The Pandemic and the Law
The Pandemic continues to touch and impact nearly every aspect of life. The law of work is no exception.
Three subjects in the law relate specifically to the Pandemic:
- Whether putting an employee on a temporary layoff or leave due to COVID-19 related reasons is a constructive dismissal;
- Whether the Pandemic has an impact on an employee’s entitlement to reasonable notice; and
- Whether an employer may implement a vaccine mandate, and the consequences if an employee refuses to follow it.
Temporary Layoffs and Constructive Dismissal
Our team has been quite vocal since the start of the Pandemic expressing our concern that many of the temporary layoffs that were imposed in response to the Pandemic could be deemed a constructive dismissal. The issue was further complicated in Ontario, where the government unilaterally transformed those “layoffs” into leaves of absence. It took some time, but we are starting to see some cases based on that issue work their way through the court system, and we will undoubtedly see many more in 2022.
In May 2020 the Government of Ontario announced Ontario Regulation 228/20 (the “Regulation”). The Regulation displaces the provisions in the Employment Standards Act, 2000 (the “Act”) regarding constructive dismissal and layoffs. Under the Regulation, an employer may temporarily reduce an employee’s hours of work and/or income for reasons related to COVID-19. This reduction, instead of being classified as a layoff, would be deemed to be an Infectious Disease Emergency Leave (“IDEL”). The Regulation is retroactive to March 1, 2020 and the Government of Ontario has advised that it will last until the end of COVID-19 period – the date of which remains fluid.
In February 2021 the Ministry of Labour released a bulletin confirming the Government of Ontario’s position that the Regulation did not change the common law in terms of constructive dismissal. Shortly after, the Ontario Superior Court of Justice heard a number of cases on whether the Regulation impacted the definition of “constructive dismissal” at common law as well as the Act. Unfortunately, the Court decisions provided more confusion rather than more certainty and the law remains unclear.
Coutinho v. Ocular Health Centre Ltd.
In Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, the Court distinguished between constructive dismissal under the Act and the common law, finding that the IDEL did not impact the common law. The Court found that an individual that was unilaterally placed on IDEL was constructively dismissed at common law and entitled to common law reasonable notice or pay in lieu thereof. Read Stuart Rudner’s interview on this case here.
Taylor v. Hanley Hospitality Inc.
In Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135, the Court found the opposite: that placing an employee on IDEL was not a constructive dismissal at all as the Regulation changed the common law regarding temporary reductions in work as well as the Act. The Court noted that “exceptional situations call for exceptional measures”. Watch Brittany Taylor’s video blog on this case here.
Fogelman v. IFG
In Fogelman v. IFG, 2021 ONSC 4042, the Court cited the Ministry of Labour’s bulletin, finding that the IDEL did not impact the common law and that an individual whose hours of work had been reduced pursuant to it had been constructively dismissed. Read our blog post about this case here.
The Court of Appeal for Ontario will hear the employer’s appeal in Taylor, in April 2022. The Ministry of Labour initially advised it intended to make submissions regarding the Government of Ontario’s position. It later reversed its decision. April is still some time away – whether the Ministry will get involved remains to be seen with any certainty.
So, does IDEL impact the meaning of constructive dismissal at common law? Until the Court of Appeal weighs in with a definitive answer, it is not clear.
The Pandemic and Notice Periods
The Court has begun to consider whether the Pandemic factors into an assessment of reasonable notice.
Yee v. Hudson’s Bay Company
Yee v. Hudson’s Bay Company, 2021 ONSC 387 was the first employment law case to consider the impact of the Pandemic. The Court found that as the employee was dismissed before the Pandemic, this did not impact his entitlement to reasonable notice, which was to be calculated at the time of dismissal. Read Stuart’s article on the case here.
Iriotakis v. Peninsula Employment Services Limited
In Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, the employee had been dismissed at the start of the Pandemic. The timing alone was not enough to affect reasonable notice: the Court indicated it required evidence of its impact on the employee’s job search for the Pandemic to affect reasonable notice. Read Brittany’s interview on the case here.
Kraft v. Firepower Financial Corp.
In Kraft v. Firepower Financial Corp., 2021 ONSC 4962, the employee had been dismissed the same week as the Pandemic led to the declaration of a state of emergency – earlier than in Iriotakis. The Court found that the Pandemic impacted the job search – and added one month to the notice period. Read our blog post on the case here.
The bottom line seems to be confirmation of the law: the Court has consistently stated it would consider any factor relevant to the assessment of the reasonable notice period. A judge will not usually make assumptions, but will consider evidence which indicates that the employee’s job search should have been shortened or lengthened by existing factors. It is open to the parties to produce such evidence.
The Legality of a Vaccine Mandate
2021 saw the widespread availability of reliable and safe vaccines against COVID-19. With it came a scramble by employers to draft and enact vaccination policies – sometimes by passing a mandate that their staff get vaccinated against COVID-19 as a condition of continued employment. This scramble was met with confusion and controversy, which, as is often the case, resulted in litigation, with varying results.
Blake v. University Health Network
An employee unsuccessfully sought an injunction against the employer’s mandatory vaccination policy in Blake v. University Health Network, 2021 ONSC 7139. The Court dismissed the motion, and found the Plaintiff lacked standing to represent the union employees and the non-union employees could not show irreparable harm should the mandate be implemented.
Labour arbitrations provided more clarity on the application and enforcement of a vaccine mandate.
UFCW Local 333 and Paragon Protection
In UFCW Local 333 and Paragon Protection, the employer, whose employees serviced multiple client sites, implemented a vaccine policy which required an employee be vaccinated to attend a client site with a vaccine requirement or face redeployment. The union’s grievance was unsuccessful. The arbitrator found the vaccine policy struck the correct balance between protection of employee rights and observation of employer health and safety obligations.
Electrical Safety Authority and Power Workers Union
In Electrical Safety Authority and Power Workers Union the employer implemented a mandatory vaccination policy. Under this policy, a non-complying employee would be placed on an unpaid leave of absence or dismissed. The union was successful at arbitration. The arbitrator found the policy unreasonable, citing the workplace’s lack of outbreaks and widespread ongoing remote work among its workforce.
Ontario Power Generation and the Power Workers Union
In Ontario Power Generation and the Power Workers Union the employer’s vaccine policy required an employee to get vaccinated or provide proof of a negative test several times a week. The grievance was met with mixed success at arbitration. The arbitrator upheld the policy as reasonable, subject to the employer implementing two changes regarding testing. The employer was required to pay for each test, and an employee who had to test needed to do so on their own time.
Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada
Testing is not always an alternative to a vaccine mandate, such as in Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175. Here, the employer operated a facility on land leased from an organization which had implemented a mandatory vaccination policy. The employer implemented a similar policy. The union’s grievance was unsuccessful, with the arbitrator noting that testing as an alternative was not plausible.
Teamsters Local Union 847 v Maple Leaf Sports and Entertainment
In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2022 CanLII 544 (ON LA) the union grieved the employer’s requirement to provide proof of vaccination as a breach of an employee’s privacy rights. In denying the grievance the arbitrator noted that without requiring the disclosure of vaccination status a vaccine mandate was meaningless. Read our blog post on these cases here.
It is difficult to find a unifying message from the vaccine mandate cases heard to date. However, some basic rules can be gleaned: an employee’s vaccination record is private medical information and must be kept confidential. Any vaccine mandate must include a process by which any employee may request exemption for Code-related grounds, and a means to vet these alleged exemptions. Finally, where an employer’s business can carry on remotely or must be done in person appears to be a consideration in assessing the reasonableness of a mandate.
Stay tuned to this space for Part II of our Year in Review, covering changes to employment legislation and to employment law in the courtroom.