WRONGFUL DISMISSAL - Civil procedure - Constructive dismissal

Law360 Canada (September 22, 2022, 6:28 AM EDT) -- Appeal by the plaintiff Taylor from the dismissal of her action for constructive dismissal. On March 17, 2020, the Ontario government declared a state of emergency in response to the worldwide COVID-19 pandemic. Numerous emergency measures were enacted and still continued. At issue in this appeal were the amendments to sections 50.1 and 141 of the Employment Standards Act (ESA) and the provisions of O. Reg. 228/20 made under the ESA that created a new category of leave under the ESA, the infectious disease emergency leave. Taylor was employed as an assistant manager of the respondent’s Tim Hortons storefront in Whitby, Ontario. According to her statement of claim, on March 27, 2020, the respondent placed her on “a temporary lay-off” without pay. Taylor pleaded that, following her temporary lay-off, the respondent continued its operations with a reduced staff and that her temporary lay-off was therefore a business decision made by the respondent in response to unfavourable economic conditions and not related to COVID-19. Before she was recalled to her employment in September 2020, Taylor commenced an action against the respondent, claiming damages for, among other things, constructive dismissal. The respondent defended the action, denying Taylor’s allegations of constructive dismissal and bad faith. The respondent pleaded that Taylor was on infectious disease emergency leave and was never terminated from her employment. The respondent brought a motion under Rule 21.01(1)(a) of the Rules of Civil Procedure for the determination before trial of the issue of whether Taylor’s action was precluded by the provisions of section 50.01 of the ESA and of O. Reg. 228/20. The respondent asked for the dismissal of Taylor’s action. The motion judge accepted the respondent’s invitation to take judicial notice of several facts. The motion judge accepted as uncontested the respondent’s allegations in its statement of defence because Taylor did not deliver a reply. She found that Taylor did not resign and was not constructively dismissed. She dismissed Taylor’s action. Taylor took the position that the motion judge erred in her approach to the respondent’s Rule 21 motion and in dismissing the action. Taylor further submitted that the motion judge erred in taking judicial notice of facts not in evidence as well as by misconstruing the pleadings and the pleadings rules....
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