The End of the (Emergency) Era in Ontario: Where are We Now?

Written by Richa Sandill, Staff Lawyer, Scarborough Community Legal Services

Multiple extensions and 49 emergency orders later, the COVID-19 State of Emergency in Ontario is now over. With COVID-19 numbers decreasing, the province revoked its Emergency Declaration on July 24, 2020 as it enters Phase 3 of the provincial reopening process. Many Emergency Orders that were passed pursuant to the Emergency Management and Civil Protection Act (the “EMCPA”) have now also come to an end as a result. Several other Emergency Orders will remain in force despite the end of the Emergency thanks to the new, and slightly controversial powers that the provincial government now has under the Reopening Ontario (A Flexible Response to COVID-19) Act (the “Reopening Act”). I will try to untangle what stays, what goes, and key implications for workers’ rights as we enter a new chapter of the pandemic. 

1. No More Declared Emergency Leave – Infectious Disease Emergency Leave Remains till September 4, 2020 

The immediate result of the end of the Emergency is that Declared Emergency Leave (“DEL”) is no longer available as of July 24, 2020. Readers will recall that the province enacted a regulatory amendment to the ESAearly on in the pandemic, which established two COVID-19 related job protected leaves: the DEL and the Infectious Disease Emergency Leave, or “IDEL”. 

Broadly speaking, the DEL was available for those employees impacted by a COVID-19 related quarantine or travel order, or those required to care for a family member as a result of the declared Emergency. The slightly overlapping IDEL is available for employees, and employees caring for family members, who are under medical investigation, treatment, quarantine, or direction in relation to an infectious disease such as COVID-19. 

Given that the DEL was tied to the Emergency Declaration, this ESAleave ended when the Emergency ended. The IDEL remains available until September 4. Given its overlapping eligibility criteria, the Ministry of Labour (“MOL”) stated in a recent newsletter blast that some employees who meet the DEL eligibility criteria may instead be able to qualify for an IDEL. For example, IDEL criteria would still be met by an employee who is quarantined per the Health Protection and Promotion Act, providing care to family members due to COVID 19 or related school/daycare, or unable to perform their duties to one of the other existing Emergency Orders under the Reopening Act. 

• No More ESA Constructive Dismissal Protection for Employers after September 4, 2020 

The ESA regulation that left every employment lawyer out there scratching their head is also coming to an end with the IDEL on September 4, 2020. Reg. 228/20 was enacted at the end of May in response to widespread hour reductions, wage reductions, and temporary layoffs during the COVID-19 Emergency. All such employees were automatically deemed to be on an IDEL retroactive to March 1, 2020 and not constructively dismissed under the ESA as a result of these changes.  

Reg. 228/20’s moratorium on these changes not being constructive dismissal ends six (6) weeks after the end of the COVID-19 Emergency period. Therefore, as of September 4, 2020, employers will not have the protection of this Regulation if they make COVID-19 related hour or wage reductions. I would also suspect that this means employees have the right to be returned back to their original work conditions at that time if the company is still operating, unless the employee has actually consented to these changes or was provided notice/consideration. 

Time is also now ticking for employers relying on Reg. 228/20 to return employees on COVID-19 related temporary layoffs to work by September 4, 2020. This is especially the case if the employee is approaching the thirteen (13) week ESAlimit for temporary layoffs and/or did not have a provision in their contracts permitting the temporary layoff. Otherwise, such employees might be viewed again under the ESAas being either automatically terminated or constructively dismissed depending on the circumstances. Ditto for any leaves that have continued beyond the thirteen (13) week ESA limit as a result of Reg. 228/20.  

And for those still pondering the impact of Reg. 228/20 on common law rights, it looks like that debate will no longer be necessary after September 4. Even if I am wrong, at least I won’t have to explain to clients anymore why the ESA and the common law say two completely different things. September 5 is going to be a great day! 

• Limitation Periods Remain Suspended to September 11, 2020

A quick but important note that limitation periods, which were suspended on March 20, 2020 retroactive to March 16, 2020, remain suspended until September 11, 2020 per Reg. 106/20 under the EMCPA. Various courts are beginning phased forms of reopening in the meantime, including the Superior Court of Justice on a regional basis. More courtrooms are expected to open up at the Superior Court as of September 15, 2020. 

Small Claims Court remains mostly closed beyond urgent matters, garnishment hearings and settlement conferences via videoconference on consent. Small Claims matters that were cancelled during the COVID-19 emergency period will be rescheduled to after November 2, 2020. The Human Rights Tribunal of Ontario (HRTO) and the Ontario Labour Relations Board (OLRB) continue to hold hearings in writing and electronically, with the OLRB stating that its in-person hearings have been suspended until August 7, 2020 for now. 

• CERB Extended by Four Weeks 

Though this is technically federal territory, another important note is that the Canada Emergency Response Benefit (CERB) entitlement period was recently extended by another eight (8) weeks. As such, it is possible for individuals who are unable to work due to COVID-19 to receive the benefit for up to twenty-four (24) weeks. 

Conclusion

I will spare the use of everyone’s favorite pandemic word “unprecedented times” here, but it is true that we are entering a remarkable new phase with the end of the Emergency.  On one hand, it appears that things in some way are returning to normal in the law with the end of the constructive dismissal protections for temporary layoffs and hour/wage reductions. However, the worst of the confusion from this back and forth stance will only full hit us in September.  I fear this especially for vulnerable workers who faced substantial unilateral job changes amidst the panic of the pandemic and aren’t then returned to normal work conditions after September 4. 

On a better note, while the provincial government has retained the power to extend and renew Emergency Orders still in force under the Reopening Act, it otherwise cannot enact any new or further orders. At least we can all breathe a small sigh of relief that we won’t have to deal with any more surprise emergency changes to the ESA (for now). Two major ESAregulatory changes in two months is enough excitement for 2020.  

Richa Sandill, “The End of the (Emergency) Era in Ontario: Where are We Now?” Canadian Law of Work Forum (July 30 2020): https://lawofwork.ca/?p=12923