The law continues to develop in the context of COVID-19 and, I would expect, it will continue to do so including in the area of employment law.
Courts in Ontario have suspended their regular operations in Civil and Family matters (Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings) effective March 17, 2020. The Court continues to hear urgent matters during this emergency period. Starting on April 6, 2020, matters in addition to “urgent” matters will begin to be heard in the Ontario Superior Court of Justice and the Court has provided a list for each region. (Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update).
There have been a few cases dealing with COVID-19 in different contexts.
For example, in the area of family law. In a recent case a mother brought an urgent motion for an order for exclusive possession of the matrimonial home. The motion was brought because the mother had concerns “that the father is leaving and coming and going without regard to the COVID-19 protocol and adhering to the health officials’ directives and in particular as they relate to persons in the vulnerable category such as the mother” who had serious health issues. The father argued that he has been following the COVID-19 protocol. In the circumstances of this case, the Court ordered that the mother would have “temporary exclusive possession of the matrimonial home and contact by the children with their father will be by electronic means.”
There are also cases dealing with bail hearings. As one judge said in a recent case, “In the unique circumstances in which we now find ourselves, facing a global COVID-19 pandemic, it is also relevant to take into account the realities of detention and release in our current environment.” And in another case, the judge put it this way:
In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.
I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.
The reality is that, in the area of employment law, these are early days. Will the law that developed prior to the pandemic be applied strictly or will “new law” be developed by courts and adjudicators when considering the inevitable employment law issues that will arise as employers take steps to navigate the pandemic?
For example, will the law of constructive dismissal that developed pre-pandemic be applied without regard to the context in which the constructive dismissal took place? How, if at all, will the economic circumstances in which we find ourselves impact common law periods of reasonable notice? Will they go up, down or be unaffected? Is the common law duty to mitigate thrown out the window or at least suspended during the pandemic and for some period thereafter?
At this point, we’re, collectively, just trying to get through this and these legal issues, for the moment, pale in comparison to the enormity of the situation in which we find ourselves. That said, at some point down the road, when something approaching normalcy returns, we’ll have to deal with these legal issues among many others that we can’t even anticipate at the moment.