COVID-19 – Employer and Employee Frequently Asked Questions Employers Can my company screen its employees for COVID-19 prior to permitting them to enter the workplace, such as by asking them if they have symptoms, or by subjecting them to a mandatory temperature check? An employer is required to maintain a safe working environment for its employees under the Occupational Health and Safety Act. Accordingly, an employer may introduce reasonable policies and procedures to make efforts to keep its workplace COVID-19 free. Employers may wish to ask each employee prior to entering the workplace whether they are suffering from a fever, cough or shortness of breath, and if the answer is yes, to send the employee home. Some employers may even wish to require their employees to undergo a temperature check prior to entering the workplace, and if their temperature is 37.3 degrees celcius or more, to send them home. A court is likely to conclude that these measures are permissible, provided that employees are provided with advance notice of the new requirements, the screening is conducted discreetly and as confidentially as possible in the circumstances and that all employees (including management) are subjected to the same screening. While an employee who is prohibited from entering the workplace would arguably not be entitled to their wages for the day, an employer may wish to consider paying the employee for the day anyway to avoid disputes. If offered by the employer, the employee may also be eligible to take a paid sick day. It is also important to remember that not all COVID-19 cases will present with a fever and many individuals who are infected will not experience any symptoms. My company has introduced policies, such as social distancing, staggering shifts, prohibiting employees with symptoms to attend at work and encouraging employees to work from home to the extent possible. But some employees are still refusing to come to work on the basis that the workplace is unsafe and that they have a right to refuse unsafe work in accordance with the Occupational Health and Safety Act. How should the company respond? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is insufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason could be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employer may wish to consider permitting the employee to take an unpaid leave of absence. COVID-19 has caused business to decline significantly and my company is looking to save money, while continuing to employ as many employees as possible. What are my options? The following options are available: a) Reducing pay and/or hours of work If the employee does not agree to the reduction, this could result in a claim for breach of contract. Depending on the amount of the reduction, this could also result in claims for constructive dismissal, since the employer is not entitled to unilaterally change key or fundamental terms of an employment contract. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. b) Work Sharing Agreements These are arrangements in which two or more employees would share the hours and job duties of one position. This way, the employer will pay out less in wages and employees will be able to work some hours, rather than none at all. The employer and the employees must all agree to the arrangement. If the agreement is registered with Service Canada, the employees would be eligible for an Employment Insurance (EI) “top-up”. A work sharing agreement must be submitted to Service Canada at least 30 days prior to the proposed start date. c) Temporary Layoffs There are provisions in the Employment Standards Act, 2000 at section 56 which permit an employer to temporarily layoff employees. However, to date the courts have not recognized the right of an employer to temporarily layoff employees at common law. In other words, an employer is only permitted to rely on these provisions if there is an express contractual term between the employer and the employee which permits temporary layoffs. Otherwise, the employee may have a case for constructive dismissal. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. d) Canadian Emergency Wage Subsidy (CEWS) The CEWS provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. The maximum value of this benefit is $847.00/week per employee. For an employer to be eligible for this benefit, they must be able to demonstrate that their revenue dropped by 15% between March 2020 and March 2019, or between March 2020 and the average revenue of January 2020 and February 2020. For continued eligibility, the employer must demonstrate a loss of revenue of at least 30%. The CEWS may enable employers to continue to employ more of their workers without pay cuts throughout the pandemic. Employers will be able to apply for the CEWS through Canada Revenue Agency’s My Business Account portal. e) Deferral of GST and HST Payments Employers are permitted to defer GST and HST payments until June 30, 2020. f) Canadian Emergency Business Account (CEBA) This $25 billion program provides a $40,000.00 loan for certain small and medium-sized businesses that is interest free until December 31, 2022. g) Deferral of WSIB Premiums Employers may defer payment of their WSIB premiums until August 31, 2020. My company has introduced reasonable and detailed policies and procedures to keep COVID-19 out of the workplace. One of my employees has advised that they were diagnosed with COVID-19 and is convinced that he must have been exposed at the workplace. Is my company liable? If the employer has Workplace Safety and Insurance Board (WSIB) coverage, and the employee contracted COVID-19 while in the course of their employment, the employee would likely be entitled to various WSIB benefits, such as compensation for any wages incurred. If the employer does not have WSIB coverage, it will depend on whether the employee can prove on a balance of probabilities that they contracted the virus while at work, and if so, whether the employer was negligent in the course of implementing and enforcing its Coronavirus policies. For example, if an employer implemented a social distancing policy which complied with the Public Health Ontario and Public Health Agency of Canada guidelines, but took no steps to enforce the policy, despite management’s knowledge that the policy was regularly not followed and treated as a joke by its employees, the employer could be liable. My company has not yet implemented a written Coronavirus policy. What should the policy include? This will depend on the nature of the business. The following list is not exhaustive. We recommend that an employer’s Coronavirus policy include the following: a) The individual(s) at the company who employees should contact, if they have symptoms of COVID-19, or believe they have been exposed to or have contracted the virus; b) A requirement that any employee who has symptoms of COVID-19, or believe they have been exposed to or have contracted the virus not be permitted to attend at work until they provide a medical note to the employer confirming that it is safe for them to return to work; c) For companies that are considered essential businesses, a requirement or strong encouragement that those who are able to perform the duties of their job from home work primarily from home; d) A prohibition of gatherings at work – for example, a statement that employees are not permitted to each lunch together in the company’s lunchroom; and e) A requirement that all employees stay at least two (2) metres away from each other when possible, in accordance with social distancing legislation and Public Health Ontario and Public Health Agency of Canada recommendations. Since most employees are likely to be working from home, employers should review their working from home policies, in particular with respect to confidentiality, health and safety/workplace accident and productivity issues. We encourage employers to seek legal advice with respect to implementing a Coronavirus policy. Employees If I am unable to work because I have COVID-19 symptoms, a family member has COVID-19 or I need to take care of my children who are home from school, is my employer required to pay me? Unless the employer offers paid sick leave, or the employee is eligible for payment in accordance with another contractual term or employer policy, the employee would not be entitled to pay from the employer. However, employees who are no longer earning income because of COVID-19 may be eligible for the Canadian Emergency Response Benefit (CERB). This benefit provides $500.00 for up to sixteen (16) weeks. I am concerned that I may become infected with the novel coronavirus at work. Am I entitled to refuse to work? Is my employer required to pay me? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is not sufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason is not entitled to payment. The employee could also be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employee may wish to ask their employer to take an unpaid leave of absence. Can my employer fire me if I miss too much work for a COVID-19 related reason? Absolutely not! Employees are entitled to a protected unpaid leave of absence from work for employees who are unable to work for the following reasons: a) The employee is acting in accordance with an order under the Health Protection and Promotion Act. b) The employee is in isolation or quarantine in accordance with public health information or direction. c) The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace. d)The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure. e) The employee is prevented from returning to Ontario because of travel restrictions. For more details, please see section 50.1(1) of the Employment Standards Act, 2000, which was recently amended. I have been diagnosed with COVID-19. Can my employer require me to disclose this diagnosis to them? An employer has an obligation to maintain a safe working environment. Normally, if an employee is sick and is seeking time off or an accommodation under the Human Rights Code, an employer would be entitled to know the employee’s prognosis as it relates to employment, but not their diagnosis. However, the medical evidence available suggests that COVID-19 is highly contagious. It would therefore be in the interest of the employer and other employee to know whether one of their co-workers has been diagnosed with COVID-19. This way, any individuals with whom the employee diagnosed with COVID-19 can stay away from the workplace and self-isolate, so as to reduce the spread of the virus in the workplace. If an employer becomes aware than an employee has been diagnosed with COVID-19, the employer should take reasonable steps to maintain confidentiality. Rather than disclosing the identity of the individual to the entire workplace, the employer should communicate that there has been a confirmed case of COVID-19 in the workplace. To ensure compliance with public health guidelines, it may be necessary for the workplace to close and for all employees to self-isolate for 14 days. My employer is threatening to temporarily lay me off from work, significantly reduce my hours or cut my salary due to a slowdown in business. Is this legal? If there is a contractual term that permits an employer to temporarily lay off employees, then it can do so, provided that it complies with the temporary layoff provisions at section 56 of the Employment Standards Act, 2000. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. An employer is not permitted to unilaterally reduce hours of work or cut an employee’s salary. This may constitute constructive dismissal and entitle the employee to a severance package. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and maybe willing to accept the change in the terms of their employment, as long as it is intended to be temporary. For more information please contact Employment lawyer Marty Rabinovitch by email marty.rabinovitch@devrylaw.ca or phone 416-446-5093. “This article is intended to inform. Its content does not constitute legal advice and should not be 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 LawApril 15, 2020September 30, 2020
“COVID-19 cases are on the rise in Ontario. Do I really have to facilitate my ex’s access time with our kids?” The amount of COVID-19 cases in Ontario continues to increase. As of April 10th , there are more than 6,200 confirmed cases of the coronavirus in the Province, with the majority of cases in the Greater Toronto Area – Global News Since this pandemic began, the Canadian Government has been urging Canadians to do one thing: stay home. But for many Canadian children with separated parents, this is not practicable, as those families likely have an existing agreement or court order specifying the duration and frequency of each parents’ time with the children. Many separated parents may be tempted to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent, the Courts have been clear that there may be consequences for that parent once regular court operations resume – Canlii According to Justice Pazaratz of the Ontario Superior Court – Canlii, existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed – Global News If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between your child and your ex, you may meet the test for “urgency”, which would allow your matter to be put before a Judge. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area: Your concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date; Your concern must be serious enough in that it significantly affects the health, safety or economic well-being of you, your ex and/or your children; and Your concern has to be rooted in real evidence. It cannot be speculative or theoretical. If your matter is not urgent, the Courts are encouraging parents, now more than ever, to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children. Children always need the love, guidance and emotional support of both of their parents, but they need it even more during these unprecedented, troubling and scary times – Canlii If one parent is self-quarantined after travel or possible exposure to the virus, and direct physical contact with his/her child is therefore inappropriate at this time, it is important that parents work together to ensure that a child’s relationship with that parent is not negatively affected in any way. Various communication outlets such as Facetime, Zoom, Skype, etc. can help with that and your willingness to engage your child(ren) in these types of video chats demonstrates your ability to support and encourage your child(ren)’s relationship with their other parent and act in accordance with your child(ren)’s best interests. For more information on these issues, as well as information as to how COVID-19 affects child and spousal support, listen to episodes 45, 46 and 47 of the Ontario Family Law Podcast by John Schuman, Certified Specialist in Family Law and managing partner of the Family Law Group at Devry Smith Frank LLP – Devry Law Podcasts By Fauzan SiddiquiBlog, COVID-19, Family LawApril 13, 2020September 30, 2020
MOVING CANNABIS: The Canadian Perspective This blog is co-written by our former articling student, Janet Son. On October 17, 2018 Cannabis became legal in Canada. The federal Cannabis Act[1] sets out the terms and conditions, which are uniform across Canada. It deals with the production, sale, distribution and possession of cannabis. Provinces have power to deal with how it is distributed, sold and can add restrictions; hence there are variances in each province. In Canada there is a need for a federal license to grow and sell cannabis for medical and recreational purposes. Those with licenses are called Licensed Producers[2]. Those who wish to sell cannabis are required to be licensed as well. The provinces provide retail licenses. As with alcohol, in Ontario the Alcohol and Gaming Commission in Ontario is in charge of the retail licensing process and the sale of recreational marijuana in private stores. In the spring of 2019, 25 retail stores were opened in Ontario.[3] With the legalization of the cannabis industry and the establishment of stores comes the need to transport cannabis. The Cannabis Act set out a comprehensive scheme for the transportation and delivery of cannabis. There are many distribution prohibitions that are accompanied with heavy penalties; however there are exceptions. Is it Cannabis? The first question the transportation company needs to ask is what is it planning to move? Is it cannabis? The Cannabis Act, defines cannabis as a plant and those items listed in Schedule 1 of the Cannabis Act, but not those parts of the plant listed in Schedule 2 of the Act. Schedule 1 includes: Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in Schedule 2 Any substance or mixture of substances that contains or has on it any part of such a plant Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained[4] Schedule 2 indicates that the following are NOT included in the definition of cannabis: A non-viable seed of a cannabis plant A mature stalk, without any leaf, flower, seed or branch, of such a plant Fibre derived from a stalk referred to in item 2 The root or any part of the root of such a plant[5] Is the Cannabis Legal? The Cannabis Act defines illicit cannabis as cannabis that is or was sold, produced or distributed by a person prohibited from doing so under Cannabis Act or any provincial act or that was imported by a person prohibited from doing so under this Act.[6] Legal advice will be needed as there are many nuances under the Cannabis Act and its regulations that will need to be considered. Below are some initial areas to consider. Restrictions on Possession and Distribution Sections 8 and 9 of the Cannabis Act sets out the restrictions on possession and distribution of cannabis. Among other things, unless authorized, it is illegal for a person or organization to possess or move more than 30g of dried cannabis[7] (as defined by Schedule 3 of the Act) in a public place, to distribute to an organization, or to distribute cannabis it knows is illicit.[8] We expect that there will be extensive litigation in this regard and particularly around what a court will deem a defence to distribute cannabis it “knows” is illicit. This will be an expensive proposition for those who need to defend such cases. It should also be pointed out that the Act’s definition of a public place includes a motor vehicle.[9] Punishments can include lengthy imprisonment and hefty fines. The Cannabis Act defines distribution as administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.[10] The Cannabis Act allows for the distribution of Cannabis in certain circumstances. It needs to be produced by a Licensed Producer. Everyone in the transportation industry must make sure that the cannabis they are transporting is legal. The Cannabis producer must be specifically licensed. Where two conditions are met, the Cannabis Act allows for transportation of cannabis. The requirements are that (1) parties are acting as agents or contractors on behalf of Licensed Producers[11] and (2) the activity is authorized by provincial legislation.[12] This allows for the transportation of cannabis on behalf of Licensed Producers in compliance with the Licensed Producers regulatory conditions. Legal advice is recommended to anyone planning to transport cannabis to make sure it is legal. Is the Producer a Licensed Producer In order to legally cultivate, process or sell cannabis for medical or recreational purposes, a company must have a federal license. Those players with licenses are referred to as Licensed Producers.[13] Retail Licenses It should be noted that the provincial governments regulate the process for making recreational cannabis available forCannabis Act sale.[14] Agent or Contractor on behalf of Licensed Producer The regime allows agents or contractors to transport cannabis on behalf of Licensed Producers so long as the distribution is in compliance with the Cannabis Act and its Regulations. This is an important exception to the limitations on possession and distribution. This allows the movement of legal cannabis products at its various stages across Canada. The transportation companies will need to make sure they are in compliance with the conditions that the Licensed Producers are required to adhere to. Compliance In agreeing to transport, a company should request a copy of the license and a warranty that the Licensed Producer is in compliance with its own obligations. The transport company should also make sure it is complying with the regime and therefore legal advice should be sought in this regard. Cannabis Tracking System An aspect of the regime that a transporter needs to consider is compliance with the Cannabis Tracking System.[15] This is required by the Cannabis Act. This system is intended to monitor the flow of cannabis and to ensure that only the designated amount of legal cannabis is flowing. The Cannabis Tracking System requires monthly reporting by Licensed Producers, inventory reporting and reporting from health care practitioners. The obligations of the transporters needs to be determined and needs to comply with this regime. Cannabis Transportation Issues Cannabis and its products can be very delicate. There can be light issues, heat issues and moisture issues that can damage the product. More importantly, it is a high value to weight product that has significant demand on the black market and therefore is a target for theft. Consideration therefore needs to be made to transporting the products with the necessary type of vehicle that can supply the necessary conditions and security needed to keep the product safe and viable. Damage to the product and theft will lead to significant expenses for companies and/or its insurers. From a theft perspective, transport companies should weigh the pros and cons of unmarked trucks, versus armoured trucks, versus security guard escorts, versus police escorts. They should also consider the number of drivers per truck, predetermined or blind routes and geo-tracking shipments. While there is little regulation in this regard, the costs associated with theft for companies and the risks prevention measures an insurer may impose will likely create a standard that exceeds any regulations. Importing and Exporting Cannabis Under the Controlled Drugs and Substances Act[16] importation and exportation are considered to be illegal unless otherwise authorized by regulation or an exemption. Cannabis is a controlled substance. In general, controlled substances or precursors may only be imported or exported into Canada by a licensed dealer, licensed producer or registered dealer and each shipment must be accompanied by a valid import or export permit.[17] All permits carry an issuance and expiry date and are only valid for a onetime specific shipment of a controlled substance, cannabis or a precursor. It may only be imported into or exported out of Canada at the port and to the place specified on the permit.[18] The import and export of cannabis may only be authorized for medical and scientific purposes and within the parameters set by the international drug conventions. The import and export provisions for cannabis implement Canada’s international drug treaty obligations. Canada is a Party to the Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol[19], the Convention on Psychotropic Substances, 1971[20], and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988[21]. Health Canada has an obligation to maintain control over the movement of cannabis in a manner consistent with these international drug control conventions.[22] Accordingly, cannabis can only be imported or exported for medical and scientific purposes but not for recreational purposes. These rules apply whether Cannabidiol (“CBD”) or Tetrahydrocannabinol (“THC”) is being imported or exported. Some hemp products that meet certain criteria, may have different restrictions. Legal advice and consultation with Health Canada as well as other appropriate regulatory bodies is necessary to avoid the risk of penalties in the event the products do require permit.[23] The import or export of industrial hemp grain or seed also require an import or export permit issued under the Industrial Hemp Regulations.[24] Importing and Exporting Cannabis Only Licensed Producers with a valid Health Canada permit can import Cannabis products into Canada and only for commercial use.[25] The Cannabis Act bans cannabis imports for recreational use. A Licensed Producer requires a permit from the federal Ministry of Health to export Cannabis. It can only be transported to the designated source. At this time, only cannabis for medical and scientific purposes can be exported into countries that allow cannabis to be imported.[26] Transportation of Imported and Exported Cannabis The import and export is a large growth area and it requires transportation. Shipments of dried cannabis tripled to 1,460 kilograms (3,219 pounds) in 2018, compared with 500 kilograms in 2017 and only 44 kilograms in 2016.[27] Organizations are discussing declassifying cannabis but to date that has not taken place.[28] With less restrictions, there can be an increase in import and export. Canada is one of the first countries to legalize recreational marijuana. Other countries are starting to allow for the use of cannabis for medical purposes, so demand for transporting product will increase. As countries legalize recreational marijuana then the demand for transporting product will be even higher. There are significant issues about importing and exporting to the United States. At the federal level, cannabis remains a controlled substance, but more states are voting to legalize marijuana in one form or another.[29] The United States does not even allow for interstate transportation of hemp, hemp derived products and CBD.[30] This is unfortunate, given the United States is Canada’s closest neighbor and natural trading partner. That being said, some progress is being made. Two Canadian companies made some headway, legally shipping marijuana from Canada to the United States. Tilray received approval from the U.S. government to export a cannabinoid product to California for a clinical trial in September 2018. The DEA approved a shipment of legal medical cannabis from Canada’s Canopy Growth to a research partner in the U.S.[31] This is an industry with heavy regulation, but will hopefully get easier to navigate with time. In the interim, advice from insurance brokers, insurers and lawyers are strongly recommended to navigate the regime without any unpleasant expensive surprises. [1] The Cannabis Act, S.C. 2018, c. 16 [the “Cannabis Act”]. [2] Ibid at s 160.1(1). [3] “First allocation of stores – Expression of Interest Lottery” Alcohol and Gaming Commission of Ontario, online: <https://www.agco.ca/cannabis/cannabis-retail-lottery> [4] The Cannabis Act, supra note 1 at Schedule 1. [5] Ibid at Schedule 2. [6] Ibid at s 2(1). [7] Ibid at Schedule 3. [8] Ibid at s 9(1). [9] Ibid at s 2(1). [10] Ibid at s 2(1). [11] Ibid at s 71(2). [12] Ibid at s 72(2). [13] Ibid at s 160.1(1) [14] Cannabis Licence Act, 2018, SO 2018, c 12, Sched 2. [15] The Cannabis Act, supra note 1 at ss 81-83. [16] Controlled Drugs and Substances Act, SC 1996, c 19. [17] CBSA Memo D19-9-2, supra note 16. [18] Ibid. [19] Single Convention on Narcotic Drugs, 1961 as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961 (entered into force 8 Aug 1975). [20] 1971 Convention on Psychotropic Substances, 21 February 1971 (entered into force 16 Aug 1976). [21] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988 (entered into force 11 Nov 1990). [22] “Import and export of cannabis by licence holders under the Cannabis Regulations”, Health Canada (last modified 12 August 2019), online: <https://www.canada.ca/en/health-canada/services/cannabis-regulations-licensed-producers/import-export.html> [Health Canada] [23] “Can CBD Oil Be Imported Into Canada?” BorderBee (21 May 2019), online: <https://borderbee.com/2019/05/21/cbd-oil/> [BorderBee] [24] Health Canada, supra note 23. [25] “What does the future hold for cannabis importing into Canada?” BorderBee (19 October 2018), online: <https://borderbee.com/2018/10/19/future-hold-cannabis-importing-canada/> [26] The Cannabis Act, supra note 1 at s 62(2). [27] Matt Lamers, “Canadian medical cannabis exports tripled last year, as race for European market position intensifies” (21 March 2019), online: <https://mjbizdaily.com/canadian-medical-cannabis-exports-tripled-in-2018/> [28] Subramaniam, supra note 24. [29] Nathan Reiff, “Marijuana Companies That Legally Export Cannabis to the U.S.” (15 Jan 2020), online: <https://www.investopedia.com/insights/marijuana-companies-legally-export-cannabis-us/> [Reiff]. [30] Ian Stewart “Federal Courts Are Split on the Legality of Transporting Hemp and CBD in Interstate Commerce” (19 Feb 2019), online: <https://www.cannabisbusinessexecutive.com/2019/02/federal-courts-are-split-on-the-legality-of-transporting-hemp-and-cbd-in-interstate-commerce/> [31] Reiff, supra note 31. By Fauzan SiddiquiBlog, Cannabis LawApril 8, 2020September 30, 2020
Canadian Immigration Status during COVID-19 pandemic This blog is co-written by our former articling student, Janet Son. Information regarding the status of flights, border closures and visas is changing by the hour during this pandemic. When it comes to immigration status, there are a few key things to be done to ensure that you are able to remain in Canada. IF YOU HAVE TEMPORARY RESIDENT STATUS AS A VISITOR If you are already in Canada with visitor status that is set to expire (either because you’re nearing the end of a six-month stay or you’re approaching the date stamped in your passport or indicated on a Visitor Record issued to you), you can remain in the country by applying online for an extension of your visitor status. As these applications typically take around 90 days to be processed, this will likely provide visitors with a window within which to wait out the various risks associated with travelling that they would face if they had to leave when their status expires. Applicants with pending applications to extend are considered to be on “implied status” and may legally remain in Canada pending the decision on the application. While the Canadian government recommends applying for an extension at least 30 days before expiry of your current status, an application can be made at anytime, even the day before the expiry. Note that, if you are outside of Canada but hold a valid visitor’s visa or electronic Travel Authorization (eTA), you may not enter Canada at this time unless you fall under this list of exemptions. If you realize too late that your visitor status expired, you can apply online for restoration of your visitor status as long as you do so within 90 days of the expiry. The application process is very similar to the application to extend. The difference is the applicant is technically without status during the period of time pending a decision on the restoration, and foreign nationals should keep a copy of the letter confirming their restoration application was submitted in case called upon by any authority to explain their status. Online, make sure to select “Restore my status” and include as much detail as possible explaining why you need to extend your stay along with paying the restoration fee. If it has been more than 90 days since your status expired, you may consider applying for a temporary resident permit. These are highly discretionary permits and an officer must be convinced that, despite your breach of immigration laws, you have made a case for a further temporary stay. For some who are unable to return to their home country due to increased travel restrictions and health risks, you might argue this as grounds for a temporary resident permit. There are many nuances to an application for a temporary resident permit. If considering this option, it is highly recommended you seek the advice of an experienced immigration lawyer. These considerations apply with modifications to foreign nationals in Canada on a work or study permit. For more information, Devry Smith Frank LLP invites questions by phone call and email. The Government of Canada has strongly advised people to apply online rather than submitting a paper application at this time due to the high volume of applications. This blog is a high-level overview of your options if you are in Canada as a visitor or on a study or work permit and is not a replacement for tailored legal advice according to your circumstances. Each category has a long list of exceptions and requirements that must be carefully followed and not fully captured by this blog post. If you require more advice on your temporary immigration status contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841. By Fauzan SiddiquiBlog, COVID-19, ImmigrationApril 3, 2020September 30, 2020
CBSA Watchdog with No Teeth? A report commissioned by Public Safety Canada came to light earlier this year, urging the government to put in place an independent body to review complaints against and make recommendations to the Canada Border Services Agency and the Royal Canadian Mounted Police. The new “Canada Law Enforcement Review Commission” would have the ability to initiate reviews, dismiss frivolous complaints, share information with other review bodies, and issue non-binding recommendations to the CBSA and RCMP. While the proposal made by former Privy Council Office chief Mel Cappe would be a welcome source of accountability and transparency in Canada’s immigration system in theory, it is unlikely that such a body would have any ability to reprimand or impose change on either the CBSA or RCMP. The report was commissioned partly in response to growing public concern for the safety of people entering Canada and being detained administratively for sometimes indefinite periods of time, often improperly. The CBSA has come under recent scrutiny as a result of a series of in-custody deaths. While Canadian immigration lawyers urge the government to consider implementing the recommendations sooner than later, the extent of the watchdog’s ability to protect will remain to be seen. “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, ImmigrationMarch 20, 2020June 16, 2020
The Canada Labour Code & Employer Releases THE REMEDY The Canada Labour Code applies to employees working in companies which are governed by federal law, as opposed to provincial law. This includes industries such as public broadcasting, railroads, trucking companies which cross provincial borders, banks, federal government employees and public harbours, to name the most evident. The legislation, among other things, gives every federally regulated employee the right of arbitration when they are dismissed for cause, and in some cases when they are dismissed absent of any allegations of cause. The arbitration process can lead to an award for lost income to the date of the hearing as well as reinstatement and, in certain situations, an award of aggravated damages for injured feelings where the termination was the result of seriously unfair conduct. THE RELEASE ISSUE Many of these arbitration decisions have held that it is illegal for the employer to require the employee to sign a release waiving their rights under the Canada Labour Code as a term of a settlement offered at the time of termination. Notably, this was the case in the 1998 Court of Appeal decision National Bank of Canada v. Canada (Minister of Labour). In that decision, the ONCA upheld the arbitrator’s decision that the employee was entitled to bring a complaint notwithstanding the fact that they had signed a release, stating: Section 168 protects the right of an employee to complain of an unjust dismissal even if that employee has signed a contract by which his or her employment is terminated. Indeed, it is not difficult to envisage a situation where an employee could, after having signed such a contract, realize that the termination of his or her employment is not the result of a legitimate business restructuration as he or she was led to believe, but is instead a coloured or disguised attempt at wrongfully dismissing her or him. This shows the wisdom of the Code in protecting an employee’s access to the remedies against unjust dismissal notwithstanding the signature of a termination contract between the parties. This issue was revisited recently by the Federal Court in Bank of Montreal v. Li. In this case, the employee was presented with and accepted a severance offer. She signed a release by which she gave up all rights to file an “unjust dismissal” complaint under the Canada Labour Code. After she signed the release document and was paid the settlement sum, she proceeded to do what the release document specifically prohibited and she succeeded in court on her right to pursue her remedy. THE RIGHT WAY It is possible for an employer to settle such a case before proceeding to arbitration, but it requires that the employee file the complaint and then proceed to a mediation settlement with the Department of Labour, which is indeed a cumbersome procedure. Employees’ Take Away As has been stated many times before, the words in a contract may not be determinative of your rights. This remedy, in particular, may be quite powerful and supersede any contract in which you expressly agree not to pursue this option. It is always advisable to seek the opinion of a skilled employment lawyer before signing any release or other termination documents. However, even if you have, you may still have the option to seek further remedies. GET ADVICE AND KNOW YOUR RIGHTS This is an important issue to understand both sides. For advice on this and similar issues and, indeed, any employment issue, contact our employment law department. We regularly advise employees and employers on legal workplace issues. By Fauzan SiddiquiBlog, Employment LawMarch 19, 2020June 25, 2024
Do I still have to let my kids travel with my ex for March Break amid COVID-19? We are all aware of the current COVID-19 pandemic. Yesterday, the Ontario Government announced the closure of all publicly funded schools for two weeks following March Break, which is set to commence this Monday, March 16th. March Break tends to be one of the busiest travel seasons… but not so much this year. While most of us with travel plans have made the decision to cancel or reschedule, others are taking advantage of the cheap cost of travel and have decided to take the risk and travel anyway. So what happens if your ex-partner is insisting upon taking your children away for March Break during his or her parenting time with the kids? Do they have to go? Do you have to sign the travel consent form as required by many international laws and custom officials? The short answer: no. But you should be aware that if you do refuse to sign a travel consent form allowing your children to go on vacation with your ex, he or she may bring forward a Family Court motion, seeking to dispense with your consent to travel. When a parent is unreasonably withholding consent, the travelling party tends to be successful on this type of a motion, so long as the proposed travel is in the child’s best interests. But, in this time of COVID-19, it will likely be very difficult for a Family Court Judge to find such travel to be in the child’s best interests. Not only does the child risk being quarantined in the foreign jurisdiction amid increasing coronavirus concerns and border shutdowns, there is the very real and additional risk that child may actually contract the virus. Even if your child isn’t quarantined while away or ill with the virus, it is highly probable that he or she will be quarantined upon return to Canada. This would mean you – the non-travelling parent and presumed healthy one – wouldn’t be able to see your child for the entire quarantine period. On top of that, there is a chance that the “self-isolation period” for your child could extend past the school shutdown ordered by the Ontario Government. A prolonged absence from school could negatively impact the education of children who need additional assistance in school (exceptional pupils). This is a factor a judge will consider if asked to decide whether or not to allow a trip. Whenever you go to Family Court, it is important to make sure you have evidence to present to the judge about what truly is in your child’s best interests. All of these considerations suggest that travel outside Canada is currently not in a child’s best interests (even though it in normal circumstances, most judges tend to support children travelling). So say NO to travel… for now. By Fauzan SiddiquiBlog, COVID-19, Family LawMarch 13, 2020September 30, 2020
5 Tips to Keep in Mind When Buying your First Home or Condo Congratulations, you have decided to purchase your first home. Although this milestone can be very exciting, the home-buying process can also be a daunting experience. Mapping out the journey beforehand can help a great deal. It is essential that you retain a lawyer who specializes in real estate and who can guide you throughout the process. You Will Need To Pay Closing Costs Remember, upon the closing of your property, a buyer is required to pay certain closing costs. You must be able to access sufficient funds to pay these closing costs. Closing costs include: Legal fees and disbursements; Land Transfer Tax (Municipal and Provincial Land Transfer Tax); Title Insurance; Property and Fire Insurance; Home inspection costs; Appraisals; Interest adjustments; and Other adjustment costs. Mortgage Pre-Approval If you intend to fund your new purchase with a loan from a mortgage lender, ensure you obtain preapproval before or during the home-buying process. An agreement of purchase and sale can be conditional on a buyer obtaining satisfactory mortgage funds to complete the transaction. Failure to pay the purchase price on closing can result in the vendor terminating the transaction, seeking forfeiture of the deposit monies and commencing an action for damages suffered. You May Be Eligible for The First-Time Hom Buyer Incentive The First-Time Home Buyer Incentive enables first-time home buyers the opportunity to reduce their monthly mortgage payments without increasing their deposit. You must meet the following criteria to qualify: must meet the minimum down payment requirements; your income cannot be more than $120,000 your total borrowing is limited to four times the qualifying income If You Are a Non-Resident of Canada, Don’t Forget the Non-Resident Speculation Tax Non-residents of Canada who purchase property are subject to a 15% Non-Resident Speculation Tax (“NRST”) on the purchase of a residential property if they live in the Greater Golden Horseshoe Region. This includes the City of Toronto, York Region, and Peel Region, in addition to other regions in Ontario. There are exceptions for some non-residents, where they would be exempt from paying the NRST. If the non-resident is not eligible for an exemption to the NRST, there are also rebates for which some non-residents can apply. However, obtain legal advice first to ensure you are staying compliant. Find a Real Estate Lawyer That You Trust to Decrease the Risk of Potential Problems Retaining the services of a real estate lawyer will help reduce the risk of potential problems on closing. Among other things, a real estate lawyer will clarify your obligations as expressed in the agreement of purchase and sale, search title to the property for any unwanted encumbrances and explain the contents of all documentation to be signed on closing. Ultimately, lawyers who specialize in real estate can offer you peace of mind during the home-buying process. If you would like more information or legal advice regarding the home-buying process, please contact real estate lawyer, Louis Gasbarre at 416-446-3318 or louis.gasbarre@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, Real EstateMarch 11, 2020June 17, 2024
Pending Immigration Application? Don’t Delay Biometrics Collection As part of most work/study permits and visitor visa applications, applicants are required to give biometrics. Biometrics consist of the collection of fingerprints and a photo at a Canadian visa application centre (VAC). In most cases, applicants are required to give biometrics outside of Canada prior to issuance of their temporary travel document and/or permit. Immigration, Refugees and Citizenship Canada (IRCC) will normally send applicants a biometrics collection letter sometime after their application has been submitted. The letter will provide instructions on how to get biometrics and provide a 30-day timeframe within which to complete this step. Failure to do so within the prescribed time can lead to a rejection of the application in question. It is essential that applicants locate and contact a VAC (in their home country or any other country they may be in temporarily) quickly upon receipt of the letter from IRCC. Most VACs require appointments and can be facing backlogs that could lead to delays for applicants trying to get their biometrics done in a pinch. It is good practice to make an appointment as soon as possible. Remember to take the biometrics collection letter and passport with you! The VAC will need this to locate the applicant in their system and complete biometrics. “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, ImmigrationMarch 6, 2020September 30, 2020
17 year old, Driven to Therapy Without Parents’ Consent A 17-year-old High school student was driven to therapy appointments by the school chaplain without parents’ permission. Is this even legal? This question touches on a lot of rights of adolescents under Ontario’s Health and Education Laws. To start, in almost every situation, someone who is 17-years-old has the right to go to therapy without parental consent. The work of both psychologists and psychotherapists is covered by Ontario’s Health Care Consent Act, 1996 (because those are both self governing health professions). Under section 4 of the Health Care Consent Act, every person is presumed to be able to understand the information relevant to treatment and the consequences for making a treatment decision. There are no age limits on what “person” means, so everyone is entitled to make their own health care decisions (including therapy decisions.) The only exception to this is where the health care professional has reasonable grounds to believe that the person does not have that understanding. A young child or a person with a serious mental illness or a developmental delay may not be able to have that understanding. But, unless the health care professional believes there is a problem, any person, including a child, can consent to treatment, including psychotherapy. It is also important to note that section 15 of the Health Care Consent Act, 1996 recognizes that a person (including a child) can have the required understanding to consent to one type of treatment even if he or she cannot understand others. The impact of the Act is that a child can direct the treatment he or she understands, even when there are treatments the child does not understand. Check out this page for more about children directing their own health care. Note that leading institutions, such as the Hospital for Sick Children (“SickKids”) are very careful to respect the rights of children to direct, or participate in directing their treatment. Additionally, some practice areas, such as Adolescent Medicine Specialists, usually assist older children without the involvement of their parents. So, a child getting therapy without a parent’s permission is not “against the law.” The Code of Ethics for Canadian Psychologists is consistent with Ontario Law. It does caution psychologists to be careful around vulnerable groups and people who may not have the capacity (such as children), especially when there are multiple people involved in the therapy or aspects of it. But, that is not the case here. The Professional Standards of Practice for Registered Psychotherapists in Ontario specifically reference the Health Care Consent Act, 1996 and adopt its principals. So, the therapist did not do anything wrong either. Family Law does not apply to your chaplain because he or she is not acting as your parent. It does not give your parents a right to interfere with your therapy either. Ontario’s Children’s Law Reform Act addresses custody rights when parents are separated. Section 18(2) of that law says the custody provisions apply to children up to the age of 18. The term custody, which will soon no longer exist under Canadian Law, includes the right to make medical decisions. However, that law does not supersede the rights of the child under the Health Care Consent Act, 1996. Section 74(2) of the Child Youth and Family Services Act allows Children’s Aid Societies to intervene when a child is not receiving treatment to prevent the child from suffering harm. That section explicitly states that the Society is not able to intervene when a child has the capacity to make treatment decisions under the Health Care Consent Act. Although, there have been court cases where the Children’s Aid Society has challenged whether the child has capacity. The Chaplain is not a member of any recognized self-governing profession and is either an employee or a volunteer with the school board or school. Things are little greyer there. Since you agreed to go with the Chaplain, she was not kidnapping you or otherwise committing a criminal offence, but it is not clear that taking you out of school is permitted by the Education Act. Under section 21 of the Education Act, every person between the age of 6 and 18 is required to go to school every school day. Under section 21(5) of the Education Act, it is the duty of parents to make sure their children do attend school. The Education Act does provide some excuses for not attending school, one of which is because the student is “unable to attend school by reason of sickness or other unavoidable cause.” Your circumstances may or may not have met that criteria. But, the duty of your parents to make sure you attend school probably gives them some right to have a say in whether you can “skip school”. That they were not informed at all, might be a problem. Depending on which School Board your school belongs to, there may be School Board Policies or insurance requirements that prevent a school employee or volunteer from transporting a student for a non-school related matter. That could get your Chaplain into trouble with the Board. And might have led to bigger trouble if there had been a car accident. However, those would have been internal School Board issues and not necessarily legal ones – unless the Board decided to fire your Chaplain. Under Health Law, Family Law and Education Law, your Chaplain did not do anything that was clearly illegal. And, it may have been the right thing to do for you. “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, Family LawMarch 3, 2020September 30, 2020