How did the Ontario Court of Appeal rule on unpaid COVID-19 layoffs and constructive dismissal. What were the key facts and legal arguments in Taylor v. Hanley Hospitality. Why did the Court of Appeal decline to decide the central question in this case.
Background of the Taylor v. Hanley Hospitality Case
The Taylor v. Hanley Hospitality case arose from circumstances many Canadian workers faced during the early stages of the COVID-19 pandemic. Candace Taylor worked as an Assistant Manager at a Tim Hortons location in Whitby, Ontario. On March 27, 2020, she was laid off without pay after the Ontario government ordered restaurants to limit their services to takeout and delivery only.
While the Tim Hortons location remained open with reduced staffing, Ms. Taylor was not recalled to work until September 2020. On July 3, 2020, before being recalled, she initiated a constructive dismissal lawsuit against her employer, Hanley Hospitality Inc.
Legal Arguments Presented by Both Parties
The core arguments presented by each side in this case were:
- Ms. Taylor contended that her layoff was merely a “business decision” by her employer and constituted constructive dismissal under common law.
- Hanley Hospitality argued that the layoff was an unavoidable consequence of the government’s emergency measures and that Ms. Taylor was deemed to be on Infectious Disease Emergency Leave (IDEL) under Ontario’s Employment Standards Act.
The employer relied on Section 50.1(1.1) of the Employment Standards Act and Ontario Regulation 228/20, which deemed employees not performing work due to reasons related to COVID-19 to be on IDEL. Under these provisions, such employees were not entitled to statutory notice or severance pay.
The Lower Court Decision and Its Controversial Aspects
Justice Jane Ferguson of the Ontario Superior Court of Justice made a ruling on this case based solely on the pleadings, without a full trial. She took judicial notice of several facts related to the pandemic’s impact on businesses and employment, including:
- The widespread interruption of employment for hundreds of thousands of Canadians
- The declaration of a state of emergency in Ontario on March 17, 2020
- Government-mandated closures and restrictions on business operations
- Legislative measures implemented to address the pandemic’s impact on businesses and employees
Justice Ferguson’s decision to rule on the case without a full evidentiary hearing would later become a point of contention at the Court of Appeal.
The Court of Appeal’s Surprising Non-Decision
When the case reached the Ontario Court of Appeal, many legal experts anticipated a definitive ruling on whether unpaid layoffs during the COVID-19 pandemic could constitute constructive dismissal at common law. However, the Court of Appeal, in a unanimous decision written by Justice Lois Roberts, declined to address this central question.
Instead, the Court of Appeal focused on procedural issues with the lower court’s decision. They criticized Justice Ferguson for deciding the case on a Rule 21 motion, which is typically reserved for matters that can be resolved based on pleadings alone, without the need for evidence.
Procedural Issues Identified by the Court of Appeal
The Court of Appeal highlighted several procedural problems with the lower court’s handling of the case:
- Justice Ferguson incorrectly treated Ms. Taylor’s failure to file a Reply as an admission of the facts alleged in the employer’s Statement of Defence.
- The Court noted that a Reply is not necessary when the issue has already been addressed in the Statement of Claim.
- The lower court’s decision to rule on the case without a full evidentiary record was deemed inappropriate given the complex and novel legal issues involved.
These procedural issues led the Court of Appeal to set aside the lower court’s decision and order the matter to proceed to trial.
Implications of the Court of Appeal’s Decision
The Court of Appeal’s refusal to rule on the central question of whether unpaid COVID-19 layoffs constitute constructive dismissal at common law has left the legal landscape in this area as uncertain as it was at the beginning of the pandemic. This non-decision has several implications:
- Continued legal ambiguity for employers and employees dealing with pandemic-related layoffs
- Potential for increased litigation as parties seek clarity on their rights and obligations
- Disappointment among legal professionals who had hoped for definitive guidance on this issue
The decision effectively maintains the status quo, leaving lower courts to grapple with these issues on a case-by-case basis until a clear precedent is established.
The Intersection of Statutory Provisions and Common Law
One of the key legal questions left unresolved by the Court of Appeal’s decision is how to reconcile the statutory provisions implemented during the pandemic with existing common law principles. This intersection raises several important questions:
- Can statutory provisions like the IDEL effectively override common law rights?
- How should courts balance the need for extraordinary measures during a crisis with established legal principles?
- What weight should be given to government intentions in implementing emergency measures versus the protection of individual employee rights?
These questions remain open for future cases to explore and potentially resolve.
The Road Ahead: What to Expect in Future Litigation
With the Court of Appeal’s decision to send the Taylor v. Hanley Hospitality case back for trial, the stage is set for further development of the law in this area. Future litigation is likely to focus on several key aspects:
- Detailed examination of the specific circumstances surrounding pandemic-related layoffs
- Expert evidence on the economic impact of COVID-19 on various industries
- Analysis of how government orders and regulations affected employer decision-making
- Consideration of the interplay between statutory emergency measures and common law principles
As more cases make their way through the court system, a clearer picture of how the law will treat COVID-19 layoffs is likely to emerge.
Potential Factors Courts May Consider
In future cases dealing with COVID-19 layoffs and constructive dismissal claims, courts may take into account various factors, including:
- The specific government orders and restrictions in place at the time of the layoff
- The employer’s financial situation and decision-making process
- The duration of the layoff and any attempts to recall employees
- The availability of government support programs for both employers and employees
- The extent to which the employer communicated with affected employees during the layoff period
These factors could help courts determine whether a particular layoff was a necessary response to the pandemic or an opportunistic business decision.
The Role of Legislative Intent
Another crucial aspect that future court decisions may need to address is the role of legislative intent in interpreting emergency measures. Courts may need to consider:
- The government’s stated objectives in implementing measures like the IDEL provisions
- How these objectives align with or conflict with existing employment law principles
- The extent to which courts should defer to legislative choices made during a crisis
This analysis could have far-reaching implications for how courts interpret and apply emergency legislation in future crises.
Lessons for Employers and Employees
While the legal landscape remains uncertain, there are several lessons that both employers and employees can take away from the Taylor v. Hanley Hospitality case and its aftermath:
For Employers:
- Carefully document all decisions related to layoffs, including the specific reasons and any government orders relied upon
- Maintain open communication with laid-off employees about the status of their employment and any plans for recall
- Consider alternatives to layoffs where possible, such as reduced hours or job-sharing arrangements
- Stay informed about changes to employment legislation and emergency measures that may affect your obligations
For Employees:
- Keep detailed records of all communications with your employer regarding layoffs or changes to employment status
- Be aware of your rights under both statutory law and common law principles
- Consider seeking legal advice if you believe your layoff may constitute constructive dismissal
- Stay informed about government support programs and emergency measures that may affect your employment situation
By staying informed and proactive, both employers and employees can better navigate the complex legal landscape created by the COVID-19 pandemic.
The Broader Impact on Employment Law
The ongoing uncertainty surrounding COVID-19 layoffs and constructive dismissal claims has broader implications for employment law in Canada. Some potential impacts include:
- Increased scrutiny of the balance between statutory employment standards and common law principles
- Greater emphasis on the role of extraordinary circumstances in shaping employment relationships
- Potential legislative reforms to clarify employers’ rights and obligations during future crises
- Renewed focus on the importance of clear communication and documentation in employment matters
As the legal system continues to grapple with these issues, employment law may evolve to better address the challenges posed by unprecedented events like the COVID-19 pandemic.
Potential Long-Term Changes
The experiences of the COVID-19 pandemic and cases like Taylor v. Hanley Hospitality may lead to long-term changes in employment law and practices, such as:
- More robust provisions for temporary layoffs in employment contracts
- Increased use of flexible work arrangements to mitigate the need for layoffs during crises
- Greater emphasis on force majeure clauses in employment agreements
- Development of new legal tests for determining the validity of layoffs during extraordinary circumstances
These potential changes could help create a more resilient and adaptable employment law framework for the future.
Conclusion: The Continuing Quest for Legal Clarity
The Taylor v. Hanley Hospitality case and the Court of Appeal’s subsequent non-decision highlight the complex legal challenges arising from the COVID-19 pandemic. While many had hoped for a definitive ruling on the status of pandemic-related layoffs under common law, the legal community must now wait for future cases to provide clarity.
As litigation continues and more cases make their way through the court system, it is likely that a clearer picture will emerge of how Canadian law will treat COVID-19 layoffs and similar situations in the future. In the meantime, both employers and employees must navigate this uncertain landscape with caution, seeking legal advice when necessary and staying informed about ongoing developments in employment law.
The eventual resolution of these legal questions will have significant implications not only for those directly affected by pandemic-related layoffs but also for the broader field of employment law in Canada. As the legal system adapts to the challenges posed by unprecedented events like the COVID-19 pandemic, it may emerge better equipped to handle future crises while balancing the rights and obligations of both employers and employees.
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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898.46KBBusinesswoman Corporation Company Management, model, celebrities, black Hair, company png
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2.52MBGeisha Woman Hairstyle, woman, hair Accessory, black Hair, people png
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503. 99KBwomen’s orange floral long-sleeved dress, Yami Gautam Actor Film, Yami Gautam, black Hair, india, abdomen png
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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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621.63KBAmber Heard Mera Aquaman Actor, amber heard, celebrities, black Hair, monochrome 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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182.
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23KB
org/ImageObject”>Selena Gomez Spring Break Celebrity Actor Singer, selena gomez, black Hair, fashion, girl png
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2.46MB
org/ImageObject”>Yoon Yoon-hye Princess Watch Actor Female Korean drama, actor, celebrities, black Hair, girl png
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970.29KB
18MB
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