In Richard Turcotte v. Grenville Management Inc., 2025 ONSC 3087, Justice Akazaki had a situation where a 14 year Service Tech was given a temporary layoff notice as a result of the CVOID pandemic.
Here is the relevant chronology ;
March 5, 2021: Temporary Layoff Notice up to 35 weeks
November 5, 2021 : As a result of a medical condition, the Plaintiff is no longer able to work
January 14, 2022: Employer advises Plaintiff that he is now on Infectious Disease Emergency Leave (IDEL)
July 30, 2022 : IDEL Expires, Plaintiff not recalled
February 22, 2023 : Plaintiff issues lawsuit claiming termination as of March 5, 2021
March 9, 2023: Discoveries held where Employer learns that the Plaintiff cannot work due to illness.
March 22, 2023: Employee issues a Notice of Recall . Plaintiff does not return.
These are the issues the Judge decided:
- Frustration: As the evidence did not reveal that the Plaintiff was totally disabled on March 5, 2021 when the layoff took place, there was no frustration. The fact that the Plaintiff became disabled after the layoff is not relevant.
- Constructive Dismissal at Common Law: The Judge recognized that a temporary layoff is a termination unless it is part of the employment agreement that a temporary layoff would not constitute a termination. In this case the Plaintiff’s employment contract contained an unusual cause, as follows
It is agreed that the Company reserves the right to ask you … to accept a temporary layoff, during which time you may be eligible for Employment Insurance in accordance with the relevant statutes.
However, when the layoff occurred, they did not ask him to accept a temporary layoff, rather they told him that he was being laid off. He did however sign a document which stated ” I have read this notice and agree that my period of temporary layoff may continue for up to 35 weeks of layoff in 52 weeks .
The Judge went on about how this was not really consent as for a number of reasons, however the facts reveal that the Company did not recall him for almost 25 months, so it hard to see how this issue was even relevant.
- Impact of IDEL Regulation on the Common Law : Simply put the IDEL regulation provided that putting someone on an IDEL layoff was not a constructive dismissal but Section 8(1) of the ESA also provides that no civil remedy of an employee is affected by the ESA. There was a series of cases back in the day that consistently held that the IDEL Reg did not overrule the common law and therefore a common law claim for contructive dismissal based on a temporary layoff is still valid. Th Judge in a lengthy and extremely erudite rendition of the law ( including a reference to BNA Act and a 1931 case involving fish) agreed with the established line of cases that upheld the fact that the IDEL Reg has no effect on the common law .
- Length of Notice : It seems that the Judge thought that the normal notice period would be 10 months but because of the pandemic and the resultant difficulty in getting a job in his field, the Judge awarded anther 6 months notice for total of 16 months. This bump of 50% on the notice period because of the pandemic is much larger than previous cases have awarded.
- Mitigation: The Plaintiff did nothing to look for a job. However the Judge accepted the Plaintiff’s evidence that until he saw his lawyer about 12 months later, he actually believed that he would be recalled so why should he look for another job? After his illness in November, he was medically unable to work. The found that there would be no reduction in the notice period because of a failure to mitigate.
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