Understanding Title Insurance In Ontario The title of a property is used to define the right of ownership to the land. In purchasing a home, the title of the property is transferred to the new owner or owners. The insurance related to this protects residential or commercial property owners and lenders from losses related to the title or ownership of the property. Although the province of Ontario states that title insurance is optional, if you have purchased a home or commercial property in Ontario, it was most likely communicated to you that title insurance needs to be purchased as it is a requirement for any mortgage lender. There are two types of title insurance policies: The first is the Owner’s policy which protects the property owner from certain title-related losses typically listed in the insurance policy. The second is the Lender’s policy covering the Lender from losses that occur if the mortgage is invalid or unenforceable. What does Title Insurance Cover? The title insurance policy you purchase will be in place for as long as you hold possession of the property. As with most insurance policies, they are in place to provide the purchaser coverage to protect from potential losses. A Residential Title insurance policy could provide coverage against losses from: Unknown title defects (title issues that prevent you from having clear ownership of the property); Existing liens against the property’s title (e.g., the previous owner had unpaid debts from utilities, mortgages, property taxes, or condominium charges secured against the property); Encroachment issues (e.g., a structure on your property needs to be removed because it is on your neighbor’s property); Title fraud; Errors in surveys and public records; It is also essential to also consider what Title Insurance does not cover, which could include: Known title defects (that were revealed to you before you purchased your property); Environmental hazards (e.g., soil contamination); Native land claims; Problems that would only be discovered by a new survey or inspection of your property (e.g., the property is smaller than initially thought); Matters that are not listed in public records (e.g., unrecorded liens and encroachments); and Zoning bylaw violations from changes, renovations, or additions to your property or land that you are responsible for creating. It will also not provide compensation for issues that are not related to home warranty or home insurance. Issues such as: Damages due to flooding, fire, or sewer backup; General wear and tear of your home (e.g., replacing old windows, a leaky roof, or an old furnace); Theft (e.g., a burglar breaks into your home and steals your television); and Other losses or damages due to nontitle related issues. Benefits of Title Insurance The benefits of title insurance will allow property owners comprehensive coverage for a one-time cost usually due during purchase closings or refinances. Not only will this allow for peace of mind for the purchasers, but you can be sure that if any defects affect the title of your home, these will be covered by your title insurance policy, and your problem could be easily corrected, which lends peace of mind to the purchasers. If you are looking to order title insurance, Stewart Title and First Canadian are well-known Title Insurers. You can speak to a lawyer on how to proceed with the following steps. If you have any further questions on Title Insurance or would like to speak to someone about your Title Insurance for your residential or commercial property, please contact Devry Smith Frank LLP Lawyer Corrine Joseph at Corrine.Joseph@devrylaw.ca Or call her at 289-638-3181 for assistance with this matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Real EstateJuly 16, 2021January 10, 2024
Failure to Comply with Termination Provisions may be considered repudiating a valid employment agreement The case Perretta v. Rand A Technology Corporation, 2021 ONSC 2111, demonstrates that employers must abide by termination clauses as they run the risk of being found to have repudiated an otherwise valid employment agreement due to their conduct. Facts The plaintiff, Perretta, was terminated from her position without cause after working with the defendant for 5.5 years. The plaintiff’s employment contract provided that Rand A Technology Corporation (“Rand”) could terminate her employment without cause by providing two weeks of notice or pay in lieu of notice plus the minimum notice or pay in lieu of notice, benefits, and severance pay required by the Employment Standards Act (“ESA”). Instead of abiding by the clause, the plaintiff was advised by Rand that the additional two weeks owed beyond the ESA minimums would be withheld unless she signed a full and final release, a condition that was not included in the employment contract. After consulting with Perretta’s legal counsel, Rand apologized and transferred the equivalent of two weeks’ pay and the monetary value of her entitlements under the ESA. Nevertheless, the plaintiff brought a summary judgment motion arguing that Rand had effectively repudiated the employment contract due to Rand’s conduct. The Ontario Superior Court was asked to consider, among other issues, whether the employment contract between Perretta and Rand was repudiated by the defendant. Repudiation of Employment Contract The Ontario Superior Court agreed with the plaintiff and found that the defendant had effectively repudiated the employment contract. Repudiation of a contract, whether an employment contract or otherwise, occurs by the words or conduct of one party to a contract that shows an intention not to be bound by the contract. The Court cited Remedy Drug Store Co. v. Farham, 2015 ONCA 576, to outline the objective test for anticipatory repudiation. In particular, the court is to ask whether a reasonable person would conclude that the breaching party no longer intends to be bound by the employment contract. In doing so, the court must consider the surrounding circumstances including the nature of the contract and the motives which prompted the breach. In this case, the Court determined that the defendant’s conduct constituted a repudiation of the employment contract. Rand did not specify in its employment termination letter that the plaintiff had to sign a Full and Final Release before receiving the two weeks’ salary required by the termination provision. The Full and Final Release’s use of extensive terms and organization demonstrated that the release was not a mistake on the part of the employer and demonstrated Rand’s intent to make these demands against the plaintiff. Lastly, the defendant heavily relied on its reversal of position only after receiving legal advice from the plaintiff’s counsel. Taking the acts and the surrounding circumstances together, the Court concluded that a reasonable person assessing Rand’s conduct would surmise that in demanding that its employee execute a Full and Final Release and comply with its terms, Rand no longer intended to be bound by the employment contract. Because the Court found that the employment contract was repudiated by Rand, it was not necessary to determine whether the termination provisions were unenforceable. However, the Court held that even if the employment contract was not repudiated, the termination clause would be unenforceable, as the just cause provisions contained several clauses that directly contradict the ESA. Conclusion The Ontario Superior Court’s decision demonstrates that employers must remain diligent to avoid the consequences of failing to abide by employment contracts. Failure to abide by employment contracts can jeopardize an employer’s ability to rely on termination provisions to limit entitlements. If an employer requires a release for entitlements beyond the ESA minimum notice, employers must clearly state it within their contract in order to prevent repudiation of the employment contract. Instead of paying 2 weeks’ notice on top of the ESA minimums, the employer was required to pay 6 months’ notice in total. The defendant could have avoided paying the increased notice had it simply complied with its own contract. This case serves as a warning to employers to ensure that they comply with their contractual obligations. Giving an apology will not be enough to cure the fatal mistake of failing to abide by a contract. It is important that when considering a termination of an employee, you have the right advice. If you have been terminated, prior to signing anything, you should contact a lawyer. Our team of employment lawyers are prepared to help you navigate through any legal questions you may have. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 9, 2021January 10, 2024
Enforceability of Mandatory COVID-19 Vaccination Policies in the Workplace Register Now: Upcoming Event - HR/Employment Webinar - September 21, 2021 To date, Canada’s federal and provincial governments have not introduced any legislation which would require all eligible individuals to be vaccinated against COVID-19. However, would a mandatory vaccination policy introduced by an employer be legally enforceable? If employees refuse to get vaccinated, would an employer be justified to prohibit the employee from attending at the workplace, to place them on an unpaid leave of absence, or to terminate their employment or otherwise discipline the employee? In addressing this issue, there are two competing interests. Health and Safety Concerns of Employers On the one hand, an employer must take reasonable steps to maintain a safe working environment. This includes taking measures to protect its employees from contracting COVID-19. For example, employers must follow the current public health advice with respect to physical distancing, masking, and daily COVID-19 screening of employees. An employer may argue that since the evidence demonstrates that all approved COVID-19 vaccines in Canada are highly effective at reducing one’s chances of contracting the virus, and have a low risk of causing serious side effects, requiring all employees to be vaccinated is a reasonable step to prevent a COVID-19 outbreak in the workplace. Human Rights and Privacy Concerns of Employees On the other hand, the Ontario Human Rights Code prohibits employers from discriminating against employees based on several grounds, such as disability and religion, up to the point of undue hardship. For example, if an employee is unable to be vaccinated for medical reasons, the employer would have an obligation to provide a reasonable accommodation to the employee. Examples of such accommodations would include permitting the employee to work from home, or permitting the employee to attend at the employer’s premises, provided that they physically distance and/or wear a mask at all times. Further, some employees may not wish to disclose their vaccination status to the employer, on the basis that this information constitutes personal health information. An employee’s vaccination status does likely constitute personal health information under privacy legislation. However, requesting that an employee disclose their vaccination status in the interest of maintaining a safe and COVID-19 free workplace may be permissible, as long as the employer has a policy in place which sets out why the information is being collected, how the confidentiality of the information will be protected, who will have access to it, the purpose for which it will be used, where it will be stored, and the period of time for which it will be kept by the employer. Which will prevail? The courts have not yet addressed the issue of whether mandatory vaccination policies will be enforceable. It will likely depend on the type of workplace and the job duties of the employees in question. In an office setting, employers will likely be able to accommodate most employees who refuse to get vaccinated on the basis of a protected Human Rights Code ground. For example, employees may be permitted to work from home, to work in a relatively isolated area of the office, and/or be required to wear a mask. Where such accommodations would be reasonable, an employer would likely not be justified in terminating or otherwise disciplining an employee who refused to get vaccinated. However, a mandatory vaccination policy for health care workers at retirement homes or hospitals, who generally cannot work from home, is more likely to be enforceable. Many patients at hospitals and elderly residents would be considered “high risk” if they contracted COVID-19 and would be vulnerable to contracting the virus from an unvaccinated employee with whom they would be in regular contact. Physical distancing is likely not possible at all times and in many cases, wearing a mask would be insufficient protection for other employees, residents, and patients. In a situation where an employee makes a personal choice not to get vaccinated for a reason that would not be protected by the Human Rights Code (such as general vaccine hesitancy or belief in conspiracy theories), in certain workplaces the employer may be permitted to place the employee on an unpaid leave of absence until the pandemic has ended or even terminate the employee for failing to comply with the employer’s vaccination policy. As we continue to gain scientific knowledge about COVID-19 and its variants of concern, the effectiveness of the various COVID-19 vaccines, and their possible immediate and long-term side effects, the enforceability of mandatory vaccination policies is likely to change. On the one hand, if certain COVID-19 vaccines prove to be even more effective than previously thought of preventing serious and/or fatal cases of COVID-19, then mandatory vaccination policies will be more likely to be held enforceable. On the other hand, if the vaccines ultimately prove to be less effective than initially thought, and/or they can be linked to more severe side effects, mandatory vaccination policies will be more likely to be held unenforceable. The courts will eventually be required to determine where to draw the line between the health and safety concerns of employers and the human rights and privacy concerns of employees. Each case will be determined on its specific facts. If you have more questions about your employment law or human rights matter contact Marty Rabinovitch at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawJuly 6, 2021September 9, 2021
Principled-Articling Student Relationship Not Considered Unique Relationship Under Common Law Employment Principles – Wrongful Dismissal In 2016, Melissa Ojanen (“Ojanen”), an articling student at Acumen Law Corporation (“Acumen”), was terminated by her employer only four months after she began her articles. Acumen commenced a claim against Ojanen for theft, breach of contract, trespass for entering Acumen’s premises after hours without permission, and wrongful use of Acumen’s marketing materials after Acumen discovered a legal blog providing information for persons facing a driving prohibition similar to blogs maintained by Acumen. In response, Ojanen counterclaimed for wrongful dismissal, claiming that Acumen had no just cause to terminate her articles. British Columbia Supreme Court Decision The British Columbia Supreme Court dismissed Acumen’s claims against Ojanen and allowed Ojanen’s wrongful dismissal claim. The Court dismissed Acumen’s claims against Ojanen, finding that the claims were not supported by evidence. The Court also dismissed the allegation that Ojanen was attempting to compete against Acumen through the blog on the basis that Ojanen was not in a position to compete against the firm. Regarding Ojanen’s wrongful dismissal claim, the Court determined that Acumen’s allegations of misconduct, taken individually and together, did not constitute a valid cause of dismissal or for a unilateral termination of the articling agreement. The Court awarded Ojanen $18,934 in general damages and $50,000 in aggravated damages, finding that Acumen’s actions were unfair and undertaken in bad faith. British Columbia Court of Appeal Acumen appealed the lower court’s decision, arguing that it had failed to consider the context of the special relationship between a principal and an articled student mandated by the rules and requirements of the Law Society of British Columbia. Acumen argued that the trial judge had not properly considered the context of the employment relationship and therefore had arrived at incorrect conclusions about whether there was just cause to terminate the articling relationship. Ojanen argued that the judge had applied the correct contextual analysis and appealed the trial judge’s damages assessment, alleging that the trial judge had erred in failing to award her punitive damages. Principal-Articled Student Relationship The British Columbia Court of Appeal concluded that the principal-articled student relationship is not governed by any different or unique employment law or common law principles. Referring to McKinley v. BC Tel, the Court affirmed that common law employment principles related to just cause require a contextual approach, which includes consideration of all the circumstances, such as the nature of the employment relationship and the position of the employee. In taking this approach, the Court determined that the principal-articled student relationship consisted of an employment relationship governed by common law employment principles and an articling relationship governed by statutory authority exercised by the Law Society. A principal’s loss of trust in an articled student is not determinative of whether just cause exists to terminate the employment contract. As such, common law employment principles can be applied to the employment relationship between a principal and articled student. The Court of Appeal found that the trial judge correctly applied common law employment principles and found that Acumen did not have cause to dismiss Ojanen. Punitive Damages The Court of Appeal determined that the award of general damages should be increased by $100,000 and also awarded $25,000 in punitive damages. In considering an award for punitive damages, the Court referred to the factors listed in Whiten v. Pilot Insurance to determine whether, in light of Acumen’s conduct, the compensatory damages awarded to Ojanen were sufficient to accomplish the objectives of denunciation, deterrence, and retribution. The Court of Appeal determined that Acumen’s unwarranted accusations and allegations against Ojanen, as well as the decision to publicly serve Ojanen in front of her classmates, could be considered malicious or highly reprehensible conduct that markedly departs from ordinary standards of decent behaviour. The Court awarded punitive damages against Acumen and Ojanen’s articling principal jointly and severally. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJune 30, 2021July 8, 2021
Mediation in Employment Matters: Brief Overview Mediation is an opportunity for people in legal disputes to discuss their circumstances and try to reach a settlement. This is done in the presence of an independent and impartial, trained mediator. Mediation is an efficient option to reach a resolution of existing and threatened litigation because it is cheaper and quicker than going before a judge. For this reason, it is especially common in employment law matters. In Toronto (as well as Ottawa and Windsor), mediation is a mandatory process for most civil cases. The Mediator Usually, the parties will try to work with the opposing lawyers to find a mediator on which they mutually agree, and reaching this consensus is typically successful. Toronto has many experienced employment law mediators to choose from. However, if unsuccessful, the court has a “roster” of approved mediators from which one will be chosen and appointed for mediation. The Mediation The mediator cannot force a settlement or provide legal advice to either of the parties. Nonetheless, the mediation process has proven to be a successful tool in resolving employment law disputes, usually at relatively early stages of the case (when legal costs are low). It is important, and at times mandatory, to have all relevant documents exchanged between the parties before prior to the date of mediation. Such documents may include the following: documents detailing the plaintiff’s job search in the case of wrongful dismissal, the termination letter, supporting performance materials (if performance is a matter of dispute), and any other documents relevant to the issues in the case. Your mediator can help you decide which documents needs to be shared. Should the case be resolved during the mediation, then the parties must sign a minutes of settlement. Where settlement funds are required by the agreement, payment is usually made within the following 2-3 weeks. In addition, a ‘general release’ will also have to be signed (a document that states release from any and all known and unknown claims). Future wrongdoings are not covered by the general release form. Employee plaintiffs also often request a reference letter as a term of settlement, which if given, becomes a covenant of the agreement. The letter must be in accordance with the minutes and will not allow the common law defence of ‘fair comment’, i.e. the right to make an inaccurate comment about the employee’s performance even if that comment is an honest opinion. Confidentiality and Privilege The discussions during the mediation must not be repeated to anyone not directly involved in the matter – this is governed by the mediation agreement. A breach of this confidentiality (and thus a breach of the covenant) can lead to a number of additional legal disputes. ‘Settlement privilege’ is similar to confidentiality, and is often one of the most important terms to which the parties will agree. All settlement related discussions (if a settlement was reached) must also be kept private. The purpose of this rule is to allow the parties to make open and honest statements and requests to help reach a resolution promptly. Formal offers to settle are governed by Rule 49 of the Ontario Rules of Civil Procedure. Additionally, Rule 49 advances a certain benefit to incentivize parties to settle: a party who makes an offer to settle may (if technical procedures are followed) receive a cost award. Exceptions Settlement privilege, and privilege more generally, is not a guarantee and can be overlooked in exceptional circumstances. As mediation lawyers, we guide our clients through the mediation process and inform which statements and circumstances may be such exceptions. For example, threats, fraud, and misrepresentation – and anything else that may be against public policy – are typically not protected by privilege. If you need to book a consultation with a mediator, visit www.devrylaw.ca/mediation. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJune 24, 2021June 24, 2024
New Ontario Superior Court Decision holds that COVID-19 related Temporary Layoffs do not Amount to Constructive Dismissal at Common Law – Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”). The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave (“IDEL”). Section 7 of the Regulation states that a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 will not constitute constructive dismissal during the “COVID-19 period”, which was recently extended until September 25, 2021. The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law. As discussed in our previous blog about Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) (“Coutinho”), the Court determined that the Regulation did not prevent the plaintiff, who had been temporarily laid off during the COVID-19 period and was on deemed IDEL under the ESA from pursuing a claim for constructive dismissal at common law. Under the common law, unless expressly stated in an employment contract, an employer does not have the right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. In accordance with Coutinho, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages. However, in Taylor v Hanley Hospitality Inc., 2021 ONSC 3135 (“Taylor”), the court came to the opposite conclusion. In this case, an employee was placed on temporary lay-off in March 2020 due to the closure of her workplace during the pandemic. The plaintiff commenced an action against the employer claiming damages for constructive dismissal at common law. The employer relied on Section 7 of the Regulation and argued that the employee was deemed to be on IDEL and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law. The Ontario Superior Court of Justice was asked to again consider whether an employee who had been temporarily laid off due to COVID-19 and was on deemed IDEL under the ESA had been constructively dismissed at common law. Constructive Dismissal at Common Law In contrast to the decision in Coutinho, the Court in Taylor determined that there was no constructive dismissal at common law. The Court held that it was clear that the Regulation was enacted to displace the common law with respect to constructive dismissal and layoffs, since all temporary layoffs relating to COVID-19 are deemed to be IDELs, retroactive to March 1, 2020 until the end of the COVID-19 period. As such, employees who were placed on IDEL were not constructively dismissed at common law. The Court disagreed with the analysis in Coutinho, stating that Coutinho failed to properly apply the principles of statutory interpretation. In particular, Coutinho had improperly interpreted Section 8(1) of the ESA to mean that the ESA may not displace the common law. The Court referred to the Court of Appeal’s reasoning in Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 (CanLII), in which the court expressly concluded that “Simply put, statutes enacted by the legislature displace the common law” and that it is incorrect to presume that the common law continues to operate independently of the ESA. Conclusion The decision in Taylor is in direct conflict with Coutinho and creates uncertainty as to whether employers would be liable at common law for constructive dismissal in relation to COVID-19. While Taylor provides relief for employers that have relied upon IDEL, the decision leaves the state of the law ambiguous for constructive dismissal claims at common law. It is very likely both of these decisions will be appealed and that the Court of Appeal for Ontario (the highest court in Ontario) will ultimately be asked to resolve this inconsistency in the law. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 15, 2021June 15, 2021
What if separating parents disagree over vaccinating their children? Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses? The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child’s best interests. Court decisions dealing with children’s pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada’s public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child’s vaccination. In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population. The court’s reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child’s best interests. This would likely need to be accomplished by way of a credible expert’s opinion with respect to the specific child’s needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines. If you have any questions related to your family law matter contact Mason Morningstar at mason.morningstar@devrylaw.ca or 416-446-3336. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawJune 8, 2021June 8, 2021
Ontario COVID-19 – Can Your Company Work This Construction Season? The extension to the provincial stay-at-home order has caused even greater confusion among all industries, but most specifically, the construction sector which is now subject to additional guidelines. On April 16th, the government announced enhanced regulations for the construction sector, adding to and revising how the construction community is to operate at this time. This restriction is in effect until Step 1 of the re-opening plan begins on June 13th. The government’s original requirements, which include physical distancing, good ventilation, and disinfection of surfaces/machines/tools, remain in place. With respect to the recent government regulations, the important change to now note is what construction is considered essential? This post provides an update on what activities and projects are considered essential and an update on the guidelines that were announced. As set out in the amended Ontario Regulation 82/20, permitted construction projects and related activities (including land surveying and demolition services) are those that: (a) are associated with the health care sector or long-term care, including new facilities, expansions, renovations, and conversion of spaces that could be repurposed for health care space; (b) ensure safe and reliable operations of, or provide new capacity in, (i) municipal infrastructure, or (ii) provincial infrastructure, including but not limited to, the transit, transportation, resource, energy and justice sectors; (c) support the operations of, or provide new capacity in, electricity generation, transmission, distribution and storage, natural gas distribution, transmission and storage or in the supply of resources; (d) support the operations of, or provide new capacity in, schools, colleges, universities, or child care centers within the meaning of the Child Care and Early Years Act, 2014; (e) are required for, (i) the maintenance and operations of petrochemical plants and refineries, (ii) significant industrial petrochemical projects where preliminary work commenced before April 17, 2021, or (iii) industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance or enhancement of personal protective equipment, medical devices such as ventilators and other identified products directly related to combatting the COVID-19 pandemic; (f) would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products; (g) were commenced before April 17, 2021, and that would, (i) provide additional capacity for businesses that provide logistical support, distribution services, warehousing, storage or shipping, and delivery services,(ii) provide additional capacity in the operation and delivery of Information Technology (IT) services or telecommunications services, or (iii) provide additional capacity to, or enhance the efficiency or operations of, businesses that extract, manufacture, process and distribute goods, products, equipment, and materials; (h) support the operations of broadband internet and cellular technologies and services; (i) are residential construction activities or projects and related services; (j) prepare a site for an institutional, commercial, industrial or residential development, including any necessary excavation, grading, roads or utilities infrastructure; (k) are necessary to temporarily close construction sites that have paused, or that are not active, to ensure ongoing public safety; (l) are funded in whole or in part by, (i) the Crown in right of Canada or in right of Ontario, (ii) an agency of the Crown in right of Canada or in right of Ontario, or (iii) a municipality; (m) are, (i) intended to provide shelter or supports for vulnerable persons or affordable housing, and (ii) being funded in whole or in part by, or are being undertaken by, (A) the Crown in right of Canada or in right of Ontario, (B) an agency of the Crown in right of Canada or in right of Ontario, (C) a municipality, (D) a service manager as defined the Housing Services Act, 2011, (E) a registered charity within the meaning of the Income Tax Act (Canada), or (F) a not-for-profit corporation; or (n) support the operations of or provide new capacity for, veterinary facilities within the meaning of the Veterinarians Act. It is clear from the aforementioned list of permitted activities in the regulation that the majority of them are focused on the health care, telecommunications, and personal protection equipment sectors. In addition to that, some other essential construction activities include the maintenance and construction of roads and infrastructure, public safety, and affordable housing services. If you have any questions about whether your construction company is able to work during Ontario’s battle against COVID-19, please contact Devry Smith Frank LLP Lawyer Adam Grossi at adam.grossi@devrylaw.ca or 416 446 5094 for any assistance with this matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction LawJune 2, 2021June 25, 2023
Temporary Layoffs during COVID-19 Can Amount to Constructive Dismissal under Common Law – Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”). The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave. Section 7 of the Regulation states that a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 will not constitute constructive dismissal during the “COVID-19 period”, which currently lasts until July 3, 2021. The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law. In general, for the common law to be altered by statute, there would need to be express language in the statute to that effect. In Coutinho, an employee was placed on temporary lay-off in May 2020 due to the closure of her workplace during the pandemic. The plaintiff commenced an action against the employer claiming damages for constructive dismissal at common law, along with punitive and aggravated damages. Relying on section 7 of the Regulation, the employer argued that the plaintiff was deemed to be on Infectious Disease Emergency Leave and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law. The Ontario Superior Court was asked to consider whether a temporary reduction in hours of work and/or wages constitutes constructive dismissal at common law, despite the Regulation. Scope of Regulation 228/20 under the ESA The defendant argued that due to the unprecedented emergency caused by COVID-19, section 7 of the Regulation should be interpreted to apply not only to constructive dismissals for the purposes of the ESA but also at common law. The Court found that the scope of section 7 of the Regulation must be interpreted with section 8(1) of the ESA which provides that “no civil remedy of an employee against his or her employer is affected by this Act.” The Court determined that the scope of the Regulation was constrained by its enabling legislation and could not be interpreted in the same manner as a statutory provision. In support of this interpretation, the Court considered an online publication of the Ontario Ministry of Labour, Training, and Skills Development, which states that the Regulation affects only what constitutes a constructive dismissal under the ESA and does not address what constitutes a constructive dismissal at common law. Constructive Dismissal Under Common Law While the Regulation precluded the plaintiff from pursuing damages under the ESA, the Court determined that the Regulation did not prevent the plaintiff from pursuing a claim for constructive dismissal at common law. Under the common law, unless expressly stated in an employment contract, an employer does not have a right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. The Court found that the plaintiff was entitled to treat the company’s unilateral imposition of the layoff as a termination at common law and therefore the employee had the right to sue for constructive dismissal. This decision confirms that the Regulation to the ESA has no effect on an employee’s common law right to assert that a reduction in hours of work and/or wage constitutes a constructive dismissal, thus entitling them to wrongful dismissal damages. In light of the Court’s ruling, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawMay 26, 2021June 24, 2024
Be Prepared for In-Person Medical Examinations – Personal Injury: Mierzejewski v Brook, 2021 ONSC 2295 During the COVID-19 pandemic, many in the legal profession began transitioning their practice online with the widespread use of Zoom for hearings, trials, examinations for discovery, etc. However, the courts may require plaintiffs to attend in-person medical examinations in personal injury cases despite public health concerns. In Mierzejewski, the defendant brought a motion seeking an order compelling the plaintiff to attend a neuropsychology defence medical examination and a physiatry defence medical examination, both of which would be conducted in person. The plaintiff did not agree to attend a neuropsychological examination on the basis that she did not place any brain injury or head trauma at issue. While the plaintiff agreed to the physiatry examination, the main issue was the form that the examination will take. The plaintiff argued against attending an in-person medical examination, citing the ongoing COVID-19 pandemic and her compromised health situation which included a heart attack and subsequent heart surgery in 2016, breast cancer in 2017, and a lumpectomy in 2018. The plaintiff does not leave her home unless necessary. The Ontario Superior Court was asked to consider whether the plaintiff must attend the neuropsychological medical examination and if so, whether the plaintiff must attend both medical examinations in person. Physiatry Examination The plaintiff argued that her numerous health conditions placed her in the high end risk category to contract COVID-19 and suffer serious health consequences. One of the plaintiff’s doctors advised that physiatry examinations could not be completed virtually and it would be irresponsible for the plaintiff to attend an in-person medical examination given the plaintiff’s numerous health concerns. He cited public health recommendations to those with chronic conditions to limit physical contact with others outside of their residence. The Court noted that since the trial was scheduled for June 2021, the examination could not be postponed until the pandemic improved. Citing Severin v Barker, 2020 ONSC 7784, the Court stated that a plaintiff who is required to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the plaintiff where the examination is to be conducted with COVID-19 safety protocols in place. The plaintiff had attended numerous necessary medical and legal appointments in person during the pandemic. The Court further noted that the medical assessment centre had extensive COVID-19 protocols in place including COVID-19 screenings, temperature checks, socially distanced waiting rooms, and the use of PPE. Given the presence of extensive COVID-19 safety protocols at the assessment centre, the Court ordered that the plaintiff must attend the physiatry examination in person. Neuropsychological Examination The plaintiff submitted that a neuropsychological examination would not be relevant as she did not put her neurocognitive state at issue on the basis that she did not complain of any head injuries, neurocognitive problems, post concussion symptoms, or psychological problems. The Court referenced the plaintiff’s statement of claim which stated that the plaintiff suffered serious and permanent impairment of important mental and psychological functions, including but not limited to headaches, dizziness, depression, and memory difficulties. The Court also noted several medical reports from the plaintiff’s doctors which indicated that the plaintiff suffered from psychological problems, pain disorder with psychological factors, and chronic pain as a result of the accident. In assessing the plaintiff’s pleadings, the Court concluded that the plaintiff had put her cognitive state in issue and ordered a neuropsychological examination. Citing Severin and the neuropsychologist’s statement that he could not conduct a virtual neuropsychological assessment, the Court ordered the plaintiff to attend an in-person neuropsychological examination. Conclusion The Ontario Superior Court’s decision is concerning given the significant health and safety concerns for at-risk individuals during the COVID-19 pandemic. Studies from the Guidelines for Best Practices in Psychological Remote Assessments from the OPA/CAPDA indicate that remote psychometric testing is just as effective as in-person testing. The reports also note that psychological services and assessments can be conducted effectively through online platforms with some modifications or alternatives for fully remote procedures. Plaintiffs should consider alternative assessment models when faced with an insistence that the plaintiff attends an in-person examination during the COVID-19 pandemic. If you have a specific question related to your personal injury matter contact Marc G. Spivak, managing partner of the personal injury group at marc.spivak@devrylaw.ca or 416-446-5855. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Personal InjuryMay 19, 2021May 19, 2021