How did the Ontario Court of Appeal rule on unpaid COVID-19 layoffs and constructive dismissal. What were the key facts of the Taylor v. Hanley Hospitality case. Why did the Court of Appeal refuse to decide on the central legal question. What implications does this ruling have for employment law in Ontario.
Background of the Taylor v. Hanley Hospitality Case
The Taylor v. Hanley Hospitality case emerged as a pivotal legal matter in Ontario’s employment law landscape during the COVID-19 pandemic. Candace Taylor, an Assistant Manager at a Tim Hortons location in Whitby, found herself at the center of this controversial case when she was laid off without pay on March 27, 2020. This layoff occurred in the wake of government orders restricting restaurants to takeout and delivery services only.
Despite the reduction in operations, the Tim Hortons location remained open with reduced staffing. On July 3, 2020, Ms. Taylor initiated a constructive dismissal lawsuit against her employer, Hanley Hospitality Inc. Interestingly, she was recalled to work in September 2020 and resumed her employment.
Key Arguments Presented
- Taylor’s Argument: The layoff was a “business decision” constituting constructive dismissal at common law.
- Hanley Hospitality’s Defense: The layoff was unavoidable due to the state of emergency declaration, and Taylor was actually on Infectious Disease Emergency Leave (IDEL) under the Employment Standards Act, 2000.
The Lower Court Decision and Its Controversies
Justice Jane Ferguson of the Trial Court made a decision based solely on the legal issues presented in the employee’s Statement of Claim and the employer’s Statement of Defense. This approach, known as a Rule 21 motion, is typically reserved for cases that can be decided without additional evidence.
In her ruling, Justice Ferguson took judicial notice of several facts related to the COVID-19 pandemic and its impact on businesses. These included:
- The widespread employment interruptions caused by the pandemic
- The Ontario government’s declaration of a state of emergency on March 17, 2020
- The mandated closure of restaurant storefronts
- The implementation of various emergency measures by different levels of government
- The unprecedented impact on the employment market
- Legislative measures undertaken to address the pandemic’s effects on businesses and employees
The Court of Appeal’s Non-Decision: A Closer Look
The Ontario Court of Appeal’s ruling in Taylor v. Hanley Hospitality Inc., 2022 ONCA 376, released on May 12, 2022, was eagerly anticipated by employment lawyers across the province. Many expected it to provide clarity on whether unpaid layoffs during the COVID-19 pandemic could constitute constructive dismissal at common law, even if statutory notice and severance under the Ontario Employment Standards Act, 2000 were not required.
However, the Court of Appeal’s decision, drafted by Justice Lois Roberts for a unanimous panel of three, surprised many by refusing to address the central question. Instead, the Court focused on technical grounds, leaving the legal landscape as uncertain as it had been since the pandemic’s onset.
Reasons for the Court’s Refusal to Decide
The Court of Appeal criticized Justice Ferguson’s approach of deciding the case on a Rule 21 motion. They argued that such motions should only be used for decisions that do not require any evidence and can be determined solely based on pleadings. The Court highlighted two key issues with the lower court’s decision:
- Misinterpretation of Pleadings: Justice Ferguson incorrectly assumed that Ms. Taylor’s failure to deliver a Reply meant she admitted to the facts relating to the layoff as stated by the employer. The Court of Appeal clarified that the absence of a Reply cannot be taken as an admission of allegations in the Statement of Defence, especially when the issue has been addressed in the Statement of Claim.
- Improper Use of Judicial Notice: The Court of Appeal found that Justice Ferguson had improperly taken judicial notice of facts that were not in evidence but were pleaded in Hanley Hospitality’s Statement of Defence.
Implications of the Court of Appeal’s Non-Decision
The Court of Appeal’s refusal to decide on the central legal question has significant implications for employment law in Ontario, particularly concerning COVID-19 related layoffs and constructive dismissal claims:
- Continued Legal Uncertainty: The lack of a definitive ruling means that the law surrounding unpaid layoffs and deemed Infectious Disease Emergency Leave (IDEL) remains as unclear as it has been since the start of the pandemic.
- Potential for Future Litigation: Without clear guidance from the Court of Appeal, similar cases may continue to arise, potentially leading to inconsistent rulings at lower court levels.
- Impact on Employers and Employees: Both parties in employment relationships are left without a clear understanding of their rights and obligations in similar situations, potentially complicating decision-making processes during future crises.
- Need for Legislative Clarity: The Court’s non-decision may put pressure on the Ontario government to provide clearer legislative guidance on the interaction between emergency measures and existing employment law principles.
The Role of IDEL in Employment Law Disputes
The Infectious Disease Emergency Leave (IDEL) provisions, introduced as part of the Ontario government’s response to the COVID-19 pandemic, play a crucial role in this legal debate. These provisions, found in Section 50.1(1.1) of the Employment Standards Act, 2000, and Ontario Regulation 228/20, effectively deem employees who are not performing their work due to reasons related to the designated infectious disease to be on IDEL.
Under IDEL, affected employees are not entitled to notice or severance under the statute. This creates a potential conflict with common law principles of constructive dismissal, which is at the heart of the Taylor v. Hanley Hospitality case.
Key Questions Surrounding IDEL
- Does IDEL override common law principles of constructive dismissal?
- Can an employee be considered on IDEL even if they believe they have been constructively dismissed?
- How does IDEL interact with an employer’s right to temporarily lay off employees during extraordinary circumstances?
These questions remain unanswered following the Court of Appeal’s non-decision, leaving both employers and employees in a state of uncertainty regarding their rights and obligations during pandemic-related work interruptions.
The Interplay Between Statutory and Common Law in Employment Disputes
The Taylor v. Hanley Hospitality case highlights the complex relationship between statutory law and common law in Ontario’s employment landscape. While the Employment Standards Act, 2000 provides minimum standards for employment relationships, common law principles often provide additional protections and rights for employees.
The central question that remains unresolved is whether the statutory provisions introduced in response to the COVID-19 pandemic, such as IDEL, can effectively override or modify common law principles of constructive dismissal. This tension between statutory and common law is not unique to this case but has been brought into sharp focus by the unprecedented circumstances of the pandemic.
Potential Implications for Future Cases
- Increased Scrutiny of Legislative Intent: Future cases may need to delve deeper into the legislative intent behind emergency measures like IDEL to determine their impact on common law principles.
- Balancing Act for Courts: Judges may need to perform a delicate balancing act between upholding long-standing common law principles and recognizing the unique circumstances that led to the introduction of emergency statutory provisions.
- Potential for Legislative Reform: The ongoing uncertainty may prompt legislators to revisit and potentially clarify the interaction between emergency measures and existing employment law frameworks.
The Impact of COVID-19 on Employment Law Jurisprudence
The Taylor v. Hanley Hospitality case is just one example of how the COVID-19 pandemic has forced the legal system to grapple with unprecedented challenges in employment law. The pandemic has raised numerous novel legal questions that courts and tribunals are still working to address.
Emerging Trends in COVID-19 Related Employment Law Cases
- Remote Work Disputes: Cases involving disagreements over remote work arrangements, including issues of productivity monitoring and work-from-home expenses.
- Health and Safety Concerns: Litigation related to workplace safety measures, including disputes over mask mandates and vaccination requirements.
- Discrimination Claims: Cases alleging discrimination based on factors such as age or pre-existing health conditions in relation to COVID-19 workplace policies.
- Wage and Hour Issues: Disputes over overtime pay, meal breaks, and other wage and hour issues arising from altered work arrangements during the pandemic.
As courts continue to navigate these complex issues, it’s likely that new precedents will be set, potentially reshaping aspects of employment law for years to come.
The Role of Government in Shaping Employment Law During Crises
The COVID-19 pandemic has highlighted the crucial role that government plays in shaping employment law during times of crisis. The introduction of measures like IDEL demonstrates how quickly legislative bodies can act to address unprecedented situations. However, the Taylor v. Hanley Hospitality case also reveals the challenges that can arise when emergency measures interact with existing legal frameworks.
Key Considerations for Future Government Actions
- Clarity in Legislation: Future emergency measures may need to be drafted with greater clarity regarding their interaction with common law principles.
- Flexibility vs. Certainty: Governments may need to strike a balance between providing flexible responses to crises and ensuring legal certainty for employers and employees.
- Consultation with Stakeholders: Engaging with legal experts, employers, and employee representatives when drafting emergency measures could help anticipate and address potential legal conflicts.
- Sunset Clauses and Review Mechanisms: Including provisions for regular review and potential expiration of emergency measures could help ensure they remain appropriate as circumstances evolve.
As the legal system continues to grapple with the aftermath of the COVID-19 pandemic, the lessons learned from cases like Taylor v. Hanley Hospitality will likely inform future government responses to employment-related crises.
Taylor v. Hanley Hospitality Inc., 2022 ONCA 376
Author:
P.A. Neena Gupta
Have you ever seen a movie and eagerly anticipated the sequel, only to be bitterly disappointed?
Employment lawyers felt the same way when they read the long-awaited decision of the Ontario Court of Appeal in Taylor v. Hanley Hospitality Inc., 2022 ONCA 376, released by the Court of Appeal May 12, 2022.
Justice Lois Roberts drafted the reasons for decision for the unanimous panel of three. This decision was expected to resolve the debate whether unpaid layoffs in the wake of COVID-19 could constitute constructive dismissal at common law, even if statutory notice and severance under the Ontario Employment Standards Act, 2000 were not owing. Some offices even had informal betting pools as to how the Court of Appeal would decide.
In the end, the decision was a complete non-decision. The Court of Appeal refused to decide the central question of whether an unpaid layoff or deemed Infectious Disease Emergency Leave (IDEL) constituted constructive dismissal at common law on technical grounds.
In short, the law is as murky as it has been since the start of COVID-19 over two years ago!
It is important to note that there was no trial in this matter. Justice Jane Ferguson of the Trial Court had made her decision on the basis of the legal issues as stated in the employee’s Statement of Claim and her employer’s Statement of Defence. Justice Ferguson’s decision can be found at 2021 ONSC 3135.
The background facts are quite commonplace. Candace Taylor was the Assistant Manager of a Tim Horton’s location in Whitby. The government of Ontario ordered that restaurants limit their offerings to take out and delivery. Ms. Taylor was laid off on March 27, 2020 without pay. The Tim Horton’s location was not closed, but operated with reduced staffing.
On July 3, 2020, Ms. Taylor started a constructive dismissal lawsuit. She was recalled back to employment in September 2020 and returned to work.
Ms. Taylor argued that her layoff was simply “a business decision” and constituted constructive dismissal at common law.
Her employer, Hanley Hospitality, plead that “as a result of the Ontario government’s declaration of the state of emergency”, it was “left with no choice but to temporarily lay off over 50 employees.” It also plead that Taylor was actually not laid off, but relied on Section 50.1(1.1), the IDEL provisions of the Employment Standards Act, 2000 and Ontario regulation 228/20. The regulation deems employees who are not performing their work due to reasons related to the designated infectious disease to be on IDEL . These employees are not entitled to notice or severance under the statute.
Justice Jane Ferguson took judicial notice of some well-known facts that were not in evidence, but were plead in Hanley Hospitality’s Statement of Defence:
- Hundreds of thousands of Canadians had their employment interrupted by the COVID‑19 pandemic;
- On March 17, 2020, the Ontario Government declared a state of emergency due to an outbreak of COVID‑19;
- As a result of the declaration, Tim Hortons was required by the Ontario Government to close all of their storefronts and was limited to takeout and delivery;
- Various levels of government have undertaken a variety of evolving emergency measures to attempt to mitigate the effects of the pandemic.
Those measures included the complete closure of certain businesses and restrictions on how certain businesses can operate; - Those emergency measures have had an impact on the employment market. Through no choice of their own, some employers have had to temporarily close their businesses or cut back their operations;
- The various levels of government have implemented legislative measures to address both (1) the unprecedented (in modern times, at least) impact of the pandemic; and (2) the impact of the emergency measures on businesses and the employees who work in those businesses; and
- The province undertook legislative measures to address the employment impacts of the pandemic and the emergency measures implemented to mitigate the effects of the pandemic.
Those measures included the complete closure of certain businesses and restrictions on how certain businesses can operate;
The Court of Appeal simply ducked the question. The Court of Appeal criticized Justice Jane Ferguson for deciding the decision on a Rule 21 motion, which should only be used for decisions that do not require any evidence and can be decided simply on pleadings.
Justice Jane Ferguson noted that Ms. Taylor did not deliver a Reply and therefore was deemed to admit the facts relating to the reasons for the layoff as plead by the employer. The Court of Appeal correctly noted that the lack of a Reply cannot be taken as an admission of the allegations in the Statement of Defence, since a Reply is not necessary where the issue has been addressed in the Statement of Claim.
Despite this technical error, counsel for both parties on the appeal were aware of the critical importance of the case and submitted that the Court of Appeal should provide guidance whether IDEL could constitute constructive dismissal at common law. Justice Roberts observed:
[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. 228/20The matter has been returned back to the trial level to be determined before another judge in the Superior Court of Justice.
The Ontario employment law community continues to wait for guidance from the courts on this critical issue.
Should you have any specific questions about this article or would like to discuss it further, you can contact one of the authors or a member of our Employment, Labour & Equalities Group.
NOT LEGAL ADVICE.
Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.
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Jane Taylor Millinery No wonder, because they adorn the heads of royalty, and not only British ones.
Jane Taylor started making hats in 2008. Today, her work can be seen on many titled persons – Catherine the Duchess of Cambridge, Sophie Countess of Wessex, Queen Elizabeth II’s granddaughters Princess Eugenie of York and Zara Phillips, as well as Crown Princess Mary of Denmark. At events such as the Ascot Royal Races and the Henley Royal Regatta, Jane Taylor’s hats are consistently recognized as the best. The fashion designer’s products are sold in the most expensive department stores in Britain – Harrods, Harvey Nichols, Fenwicks, Fortnum and Mason, and the House of Fraser store has launched a line of Jane’s hats under the Taylor brand.
– How did you get started making hats for the royal family?
Jane Taylor: I think my non-hat education helped me. By profession I am not a fashionista, but an artist. In college, she studied embroidery and other ways of decorating clothes. We drew a lot from life, learned to observe proportions. I was imaginative all the time..jpg)
For example, for embroidery she used not traditional materials, but rubber, copper, wires, pieces of organza, starched lace. I tried to do not flat, but 3D embroidery. In addition, I have always liked sculpture, and I created sculptural forms from fabric. And for the diploma collection I chose the theme “Theatrical headdresses”. So I started making hats. After graduation, I went to the town of Henley, where one of the main social events in Britain takes place every year – the royal regatta. There ladies always appear in hats. I came to the owners of boutiques and offered my work. In the end, I bought the entire collection. Then I opened a workshop in London – in the area where, as I thought, my future clients lived. Gradually, ladies from high society began to appear more and more often at social events in my hats – and my work was noticed by people from the royal environment.
– You have made more than one hat for the royal wedding. How do you work with clients?
Jane Taylor: Making any custom hat takes between one and a half and two and a half months.
I take measurements of the head, then I come up with a design, and only then I start making a hat. We have two fittings, and after that I hand-dye the product in accordance with the chosen outfit and the client’s skin tone. I want to note one more important thing. I really appreciate the attention and honor that members of the royal family show me with their visit, but I approach working with the most ordinary clients with the same care and responsibility.
– What does the production of a headdress involve? And why does it take so long to make?
Jane Taylor: Making a hat by hand is a painstaking process. First, I draw the desired shape on paper or computer, or form a “prototype” from dense fabric. Then I send the sketch to a woodcarver who cuts out a wooden mold/blank for the hat. Having received it, I begin to lay out on it and glue layers of material that is made from palm fibers. When applying layers, it is important to ensure that the fibers form a beautiful grid or geometric pattern.
Usually I use three layers, but sometimes I add a fourth, which I paint in gold or silver. When the layers are dry, I cut and finish the edges, paint the workpiece and begin to shape the hat. The longest procedure is the dyeing of feathers, because they have to be not only dyed by hand, but also dried, so that the paint lies evenly and does not weigh down the feather. If the hat is made correctly, no matter how voluminous it is, it will still remain light and will keep well on the head.
– How to wear a hat so that it not only fits well, but also looks good?
Jane Taylor: I often see inexperienced women wearing a chin band. This is wrong: the elastic should be worn on the back of the head and hidden under the hair. Another common mistake is a hat of the wrong size, which breaks the proportions of the figure. Short women often choose massive hats, which is strongly discouraged. And most importantly – wear a hat so that the edge of the hat reaches the eyebrow line or crosses it.
– Hats are a tradition in the UK. What is it connected with?
Jane Taylor: With the royal family. At some deep subconscious level, a hat is associated with royalty, which is why people like to wear hats. Special “hat” traditions in the UK are associated with the wedding. At British weddings, the mother of the bride wears the largest hat, the mother of the groom’s hat should take second place in size. The rest of the guests also come in headdresses. That’s etiquette. Of course, not everyone follows it, but those families where they know about the existence of a dress code follow the rules. And at the Royal Ascot and the regatta in Henley, you simply will not be allowed to go without a hat – the “hat” police are on duty at the entrance.
– You have been making hats for Ascot and Henley for several years. Have the tastes of your clients changed?
Jane Taylor: Of course. Light feather decorations that are attached to the headband are gradually falling out of fashion, and small cocktail hats are becoming popular.
Another trend is disks on the rim and large, almost flat hats. Beige, red and purple colors are in fashion, as well as prints. The style of the 1940s and 1950s is returning.
– Why are your hats loved by recognized fashionistas?
Jane Taylor: Many hats look very old because of the clutter of elements. I try to keep my hats as simple as possible so that a woman looks younger than her years. I work with unusual shapes and interesting textures, I like to combine vintage materials and modern volumes. It seems to me that hats that have both the shape and the material are modern are only good for 16-year-old models. It is difficult for older women to wear them. When I received my second education at Chelsea College, already in the field of hat making, I worked part-time in a workshop where hats were made only from vintage materials. I constantly went to the markets and looked for ancient feathers, lace, beads. I think this also influenced my style, as did my love for unexpected materials.
– So you also make collections?
Jane Taylor: Yes, I release three collections a year: bridal, ready-to-wear and custom. Wedding and ready-made hats from these collections can be purchased in stores in London, in my workshop or ordered online.
– How are you doing?!
Jane Taylor: Firstly, I have two assistants, and secondly, if I have a lot of orders, I just don’t sleep. It happens that some model becomes so popular that I do not have enough ready-made copies for everyone who ordered it online. Then I just work around the clock, but we always ship all orders on time. This is our principle. But my work is highly appreciated: in 2010 I was invited to dinner with Her Majesty. Now my plans are to enter the international market.
Do you wear hats yourself?
Jane Taylor: I always wear them in winter and to weddings. But I do not have enough time to make a hat for myself, I choose from what is in the workshop.
The designer created beautiful hats for Katherine.
She confirms that Kate has a “special effect” and although so many people ask her to make a copy of the hats, Jane always refuses, since her creations are only made for the Duchess of Cambridge.
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1.97MBDeepika Padukone, Deepika Padukone Bollywood, Deepika Padukone, black Hair, india, girl png
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1.29MBFergie The Black Eyed Peas Actor Imma Be Music, actor, celebrities, hair Accessory, monochrome png
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1.49MBAmber Heard Hollywood Roma Diary Celebrity Fashion, amber heard hd, celebrities, girl, magenta png
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685.71KBSelena Gomez Jacket Celebrity Fashion, selena gomez dress, love, black Hair, piano png
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2. 58MBwoman portrait, Alia Bhatt High-definition video Film, Alia Bhatt, black Hair, india, girl png
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1.99MBJennifer Lopez The Bronx In Living Color Singer, jennifer lopez, black Hair, girl, monochrome png
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800.16KBwoman wearing white sleeveless dress, Fashion Blonde Brown hair, amanda seyfried, celebrities, girl, hair png
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1.45MBEren Yeager Attack on Titan: No Regrets Levi Original video animation, attack on titan, black Hair, manga, human png
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org/ImageObject”>Selena Gomez Spring Break Celebrity Actor Singer, selena gomez, black Hair, fashion, girl png
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org/ImageObject”>Yoon Yoon-hye Princess Watch Actor Female Korean drama, actor, celebrities, black Hair, girl png
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