Ontario Court of Appeal Dodges Question of Whether IDEL Temporary Layoff Constitutes Constructive Dismissal Under the Common Law :

In Taylor v. Hanley Hospitality Inc., 2022 ONCA 376 the Ontario Court of Appeal was faced with the issue as to whether the IDEL rules under the ESA overruled the common rules that says in most cases a temporary layoff constituted a constructive dismissal and thus the employee would be entitled to reasonable notice.

However there was another ground of appeal, namely whether a Rule 21.01 motion ( Determination of an Issue Before Trial ) was the appropriate mechanism in this case.

The Court decided that such a motion was not appropriate in this case.

They then decided that even though both parties wanted an answer on the bigger issue of IDEL v Common Law, they declined to do so and sent it back for a determination at a trial.

Here is what they said on that issue:

(c)         Should this court interpret s. 50.1 of the ESA and O. Reg. 228/20?

[43]       The parties urged this court to interpret s. 50.1 of the ESA and O. Reg. 228/20. They submit that even if these provisions are ultimately found not to apply to the appellant’s circumstances in this case, this court’s interpretation of them will nevertheless be useful to the parties and provide guidance on these issues for employees and employers in general.[1]

[44]       I am not persuaded by these submissions.

[45]       The parties are now essentially seeking a standalone declaration of the meaning of s. 50.1 of the ESA and O. Reg. 228/20. Divorced from any factual foundation, the issue is academic at this stage of these proceedings because it would not resolve the fact-driven dispute between the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at para. 15. As a result, it is at this court’s discretion whether the issue should be entertained and determined at this stage: Borowski, at para. 16. I would refrain from interpreting the provision and regulations. Not only was this remedy not sought in the parties’ respective pleadings, but for the reasons stated above, this panel has neither the record nor the submissions that would permit us to carry out a proper analysis of s. 50.1 of the ESA and O. Reg. 228/20.

[46]       As I earlier noted, the present case is a fact-driven case. Whether the provisions apply to the appellant’s circumstances, or if they do not, and whether she can make out a claim for constructive dismissal and damages, are issues very much in dispute. The requested statutory interpretation at large is therefore not necessary at this stage for the determination of the appellant’s action.

[47]       The statutory interpretation issue, along with the other issues in dispute, should be remitted to the Superior Court of Justice for determination on a proper record. I note this was the appellant’s position before the motion judge and her alternate position on appeal.

[48]       The issues as framed did not require the parties to give the requisite notice of a constitutional question to the Attorney General of Ontario under section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, it appears to me that the court determining the issue of the interpretation of s. 50.1 of the ESA and O. Reg. 228/20 in the circumstances of this case could very well benefit from submissions from the Attorney General of Ontario with respect to the legislative intent and context of these provisions. The parties should consider whether notice should be given to the Attorney General of Ontario for that purpose.


I must say that on a policy level, I was disappointed that the Court did not answer the big question so that we could have some certainty going forward. This uncertainty will now go on for an extended period of time. Perhaps some other case will proceed to trial before this one and then on that appeal, we will have a clear answer.

But I am not holding my  breath.

I understand that there are now two trial decisions supporting the Plaintiff’s position and I don’t believe either of them are under appeal. If I wrong about this, someone please correct me.

By the way, the AG of Ontario did seek and obtained Intervenor status in this appeal for the purpose of supporting Ms Taylor’s position and then for some unknown reason they withdrew from involvement a few months before the hearing. One wonders if the AG hadn’t withdrawn whether the Court would have been more inclined to look at the bigger issue.

If you want a copy of this case, email me at barry@barryfisher.ca