Ontario Superior Court Unclear on IDEL Interpretation
- July 20, 2021
The Ontario Superior Court has released its third decision involving whether or not Ontario’s Infectious Disease Emergency Leave Regulation (“IDEL”) under the Employment Standards Act (“ESA”) removes an employee’s right to sue for constructive dismissal at common law.
In the most recent case, Fogelman v. IFG 2021 ONSC 4042, Justice Vella held that IDEL does not take away an employee’s right to pursue a claim of constructive dismissal at common law. Justice Vella found that no regulation under the ESA can supersede a civil remedy. This is affirmed in s.8(1) of the ESA which states that “no civil remedy of an employee against their employer is affected by this Act.” Based on this, Justice Vella concluded that in order for IDEL to take away the s.8 right, IDEL would have to say so carefully and expressly.
The decision in Fogelman aligns with the Superior Courts Decision in Coutinho v. Ocular Health Centre Ltd. 2021 ONSC 3076 which was decided in April of this year. Both cases found that the IDEL Regulation did not take away the common law right of employees to sue for constructive dismissal. A more in-depth analysis of the Coutinho case can be found here (Link).
However, these cases run in contrast to the decision in Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 (Link). Unlike the two cases above, Justice Ferguson held that IDEL prevents claims of constructive dismissal under the ESA and at common law. Justice Ferguson found that it was the intention of the legislature to prevent an onslaught of constructive dismissal claims during the pandemic shut-downs. Therefore, it was “common sense” that IDEL applies not only to claims under the ESA but also those under common law.
In light of these conflicting decisions, the Superior Court has yet to offer clear precedent as to how IDEL should be interpreted in light of the common law. However, with Taylor currently under appeal, the Court of Appeal should soon give us a better understanding of how IDEL impacts the rights and obligations of employees and employers.