No quick end to COVID constructive dismissal litigation

By Tony Poland, LegalMatters Staff • The surge in constructive dismissal cases due to COVID-19 does not appear to be easing and Toronto-area employment lawyer and mediator Stuart Rudner says he believes litigation will continue to be brisk in coming years.

Rudner, founder and principal at Rudner Law, says about half of the cases he is now mediating are constructive dismissal claims arising out of the pandemic and he predicts many more will follow.

“There are hundreds if not thousands of constructive dismissal cases out there that have already been filed or are being contemplated,” he tells LegalMattersCanada.ca. “There are those dating back to early in the pandemic dealing with the notion that anybody who was unilaterally laid off was actually constructively dismissed, and then there are cases arguing that any punishment for refusing to be vaccinated or wear a mask should be considered a constructive dismissal.

Pent-up potential claims

“There are some employers still maintaining COVID requirements for various reasons. As a result, you have pent-up potential claims for people who may have been put on indefinite suspension back in March or April,” Rudner adds. “Then there are the terminations for those who refused to be vaccinated or refused to wear a mask. They have two years to file a civil court claim, so there are many people with a potential lawsuit waiting to decide whether to pursue it, and that will depend, at least partially, on how the first few cases are dealt with by the courts.” 

He says constructive dismissal cases relating to vaccine and mask mandates are been flowing through the court system “but we minimal jurisprudence yet, and with respect to whether temporary layoffs or putting someone on the Ontario government’s infectious disease emergency leave constitutes constructive dismissal, we still have no authoritative decision at the appellate level so there is a risk” when making a claim.

“As lawyers, we do not necessarily know how the courts are going to treat them,” Rudner explains.

He points to Benke v Loblaw Companies Limited, a constructive dismissal case heard recently in Alberta that dealt with an employee’s refusal to wear a mask as mandated by the company.

No change in job or duties

“The court said imposing a requirement that someone wear a mask was not a constructive dismissal,” says Rudner. “The judge essentially found that the worker’s job and duties did not change. The only thing that changed was that they had to wear a mask while performing those duties and that was not a significant enough change to be a constructive dismissal.”

The case also examined whether putting someone on unpaid leave because they refuse to wear a mask would amount to a constructive dismissal, he notes.

• Technology continues to move the legal profession forward
• Prepare for exceptions to mediation confidentiality rules
• Litigating wrongful dismissal claims not for ‘the faint of heart’

“That was interesting because historically, unpaid leave is typically treated the same way as a temporary layoff, which would be seen as a constructive dismissal,” Rudner says. “But in this case the court seemed to be saying that because the leave was a result of the employee’s refusal to wear a mask, it was not a unilaterally imposed substantial change. Therefore, not a constructive dismissal. 

“This case went in the employer’s favour, but we will undoubtedly see some go the other way,” he adds. “Of course, as lawyers that leaves us all trying to figure out where case law is going in the coming years and uncertain as to how to advise our clients. As a mediator, I often end up focusing on that uncertainty; no one wants to spend years, and a lot of money, litigating when they are not relatively confident in their position.”

Rudner says it is important to note that constructive dismissal cases are decided on the individual facts involved.

‘Every outcome assessed on the particular circumstances’

“I have spoken to many clients who do not understand that just because there is a case out there where a judge says a vaccination requirement was reasonable, that doesn’t mean that courts will find that every single vaccination requirement in every single workplace was reasonable,” he says. “Every outcome is going to be assessed based on the particular circumstances.”

Resolving constructive dismissal cases can be difficult at the best of times and COVID has added an interesting and challenging dynamic, says Rudner.

“There can be a great deal of emotion at play in these cases. You have employees who are extremely upset because they were essentially ordered to be vaccinated or wear a mask. On the flip side, you have employers who are frustrated with employees who refuse to adhere to COVID policies,” he says. “Obviously in litigation, there are usually some strong feelings and the parties are polarized. But at a more societal level, the issue of mandatory vaccinations or mask requirements is like a lightning rod and people have visceral reactions. The emotion involved makes finding a settlement less predictable. Of course, it’s my job as a mediator to help the parties put emotion aside and make a rational decision”

Not always easy to keep emotions in check

Rudner says he works to keep emotions in check during any mediation but admits it can be easier said than done.

“It is even harder to do in some of these cases involving COVID mandates,” he says. “Part of my job is to help people put the past behind them and focus on the fact that in mediation you are deciding which path is better to take going forward.

“Should they pursue litigation or resolve a claim? You are never going to change what happened in the past, so I try to get people to make a decision that will allow them to move on.”

Although pandemic mandates have been lifted, Rudner says it does not mean they cannot be reintroduced, which could lead to even more constructive dismissal claims.

“We all want to be done with COVID. We are all quite happy to get engaged in more of a social life and get back to some sense of normalcy,” he says. “The reality is, who knows what the future brings? Many people believe there will be another wave in the fall, and that there may be more masking requirements or lockdowns. These issues may arise again. 

“Even if that does not happen, we are still going to have litigation making its way through the courts for years to come,” Rudner adds.

In Part 2, Stuart Rudner will examine the challenges of mediating constructive dismissal cases.