Wedding Bliss Includes Planning For The Future It’s wedding season! There are new laws that impact your marriage and your future! You are planning a wedding – the checklist is complete – but have you thought about your Will? Do you have a Will? Have you considered what happens when you get married? There are many hard conversations that happen when you get married! Your wishes for the future are one of those conversations. Getting your estate in order, after marriage, is important to ensure your new spouse and/or children are provided for financially in the future. You are not only changing your legal status, your future financial status will be changing also. As a married person, you may now file taxes together, share your income and expenses together, and buy property together – most importantly, you will now be recognized by the government as a married individual whose assets (upon death) need to be allocated according to certain laws. Once you understand these laws, your future estate plans can be shaped accordingly. As of January 1, 2022, Bill 245 came into effect. The Succession Law Reform Act has a variety of changes – one notable one is the changes to the marriage provisions. In order to determine how to plan your future with your spouse, you will need to determine which criteria apply to you – I have an Existing Will It might surprise you to know that before January 1, 2022, if you had a will and later married – your will automatically revoked. This is not the case now – your marriage will no longer revoke your will. Now, if you get married, your will stays intact and whomever your Will assigns as beneficiaries, will remain. This is an important time in your life. Marriage brings about many changes and documents to sign – one important one to consider is your Will. Ensuring your intentions are met for your future is an important consideration. I don’t have a Will If you die intestate (without a Will), your spouse will receive the first $350,000 of your estate. The remainder will be distributed between your spouse and your children. A lawyer can assist you in developing a plan for your future that meets all your intentions. I want to make a New Will With a wedding under your belt, and looking towards your future – it is a great time to discuss what you can control about your future. Is your wish to ensure that your spouse and your future children (or existing children) are protected and provided for? Then you will need to specify this in a new Will. I have a previous spouse – Separation and Divorce Under the previous legislation – a separated spouse had property rights. Under the new legislation, even if you are not divorced yet, separation will be treated as if you are legally divorced when it comes to your estate. You will be considered separated if you have been living separately and apart for 3 years, have a separation agreement, or a court-ordered separation agreement. If you left any gifts to a separated spouse, these will now be revoked. The Will will be viewed as if the separated spouse predeceased you (unless there is wording to the contrary in the Will). Under the Family Law Act, these changes also reflect the entitlement to reflect as $0. Don’t let writing up a Will confuse you; our friendly lawyers are here to assist. If you have more questions related to Wills and Estates, please visit our website or contact Tracey Rynard at Devry Smith Frank LLP to discuss any questions regarding Wills and Estates and your options at 249-888-6647 or tracey.rynard@devrylaw.ca. This blog was co-authored by Summer Law Student, Kathleen Judd. “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 situations and needs.” By Fauzan SiddiquiBlog, Wills and EstatesJune 14, 2022August 27, 2022
Can Employers Monitor Their Employees’ Electronic Activity? Bill 88, the Working for Workers Act, represents one of many attempts by the Ontario legislature to respond to the unique challenges arising during the COVID-19 work-from-home era. One element of this bill will amend the Employment Standards Act, 2000 (“ESA“) to account for the use of electronic monitoring software by employers. As of October 11, 2022, employers with 25 or more employees are required to have a written policy which addresses the electronic monitoring of employees. Background Bill 88, a supplement to the 2021 version of the same name (which you can read more about here) received Royal Assent on April 11, 2022. Electronic monitoring software, though not exclusively used by employers of remote workers, is typically used to surveil the attendance and productivity of those working from home. It is this remote relationship that the new ESA provisions intend to regulate, although in-person employees will still be entitled to notice if such software is being used to monitor them. What are the implications for employers? Employers are not prohibited from utilizing monitoring software. They must, however, have a policy which addresses the following: Whether the employer electronically monitors employees and if so, a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer. The date the policy was prepared and the date any changes were made to the policy. Such other information as may be prescribed. A copy of the policy must be provided to employees before October 11, 2022, and when changes are made to the policy, updated copies which reflect those revisions must be provided within 30 days of the date on which the changes were made. When a new employee is hired, they must be provided with a copy of the policy within 30 days of their start date. If using the services of a temporary help agency, those employees must be provided a copy within 24 hours of the start of their assignment, or within 30 days from the day, the employer is required to have the policy in place, whichever is later. What are the implications for employees? While there is a presumption that employees have a reasonable expectation of privacy, this presumption can be displaced through the employer’s electronic monitoring or other policy. There is no recourse under the Working for Workers Act if an employee finds the content of the policy or scope of monitoring to be unreasonable, although certain common law remedies may be available depending on the facts and circumstances. Employees may complain, however, if they are not provided with a copy of the employer’s electronic monitoring policy in accordance with the applicable time frames. What should be included in a monitoring policy? The legislative requirements center around transparency when using electronic monitoring rather than limiting the use of this technology. Thus, employers are simply required to state whether or not they will be using such technology and if so, they must explain in what circumstances they intend to do so. The policy must also include the date it was prepared and the date of any changes made to the policy. While the current requirements are minimal, the legislation requires that the policy include “such other information as may be prescribed,” hinting at the potential expansion of the legal requirements for electronic monitoring policies.[1] Employers should consider the following when drafting their policy: Is the use of monitoring software reasonable and necessary? (Is there a specific need for it? Will it fulfill this purpose and if so, how?) What is the scope of the software? (Does it monitor all activity, or simply record when people sign on to their computer, and sign out when they are finished working?) How will the information collected be used? (For example, will it be used to determine employee productivity? To confirm attendance? To keep records of how long an employee is away form their computer during the day?) How can the employer ensure all employees are made aware of the existence of the policy and its content? (The policy could be made available online and employees notified of the date on which becomes effective. The employer could require the employee to acknowledge in writing that they have read and understood the content of the policy). If you have any questions regarding the use of electronic monitoring software in the workplace, how to draft such monitoring policies or any other obligations and rights enshrined by these legislative changes or employment law generally please 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 situations and needs.” This blog was co-authored by Chloe Carr* [1] [1] Bill 88, An Act to enact the Digital Platform Workers’ Rights Act, 2nd Sess, 43nd Leg, Ontario, 2022 (assented to 11 April 2022), ON 2022, c 41.1.1(2)3. By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 14, 2022March 27, 2024
Procedure for Obtaining a Construction Lien What is a Construction Lien? Under Part III of Ontario’s Construction Act, a construction lien is a registration on title to a property and is available to any person who is under a contract and has supplied services or materials to the “improvement” of the property in Ontario. In accordance with the Act, an “improvement” to the land includes, but is not limited to: an alteration, addition, capital repair, demolition or installation.[1] A lien provides all people working on the building process with a legal claim on the property, and thus, a method to collect money owed to them. It allows the lien claimant to sell the debtor’s property and seek payment before anyone else. It is beneficial in that it provides “security” because the debtor’s asset will belong to the lien claimant, especially in the event of bankruptcy. A lien can also entitle payment of holdback funds that are to be retained. A lien’s value is the price of services and materials that one provides to the project and includes any direct costs incurred as a result of the delay.[2] However, the value does not extend to interest or any indirect costs like overhead costs for a project that has been delayed.[3] A lien can be applied when one does work for a tenant, public road or street, or a provincial and municipal property. With respect to public infrastructure, and provincial or municipal government property, a lien does not attach to the title of the property, instead, it attaches by writing to certain people. Preservation To pursue a construction lien, an individual must preserve it by registering the lien against title to the property or providing a copy of the lien to the owner of the land (i.e. when the land is owned by the provincial or municipal government). The lien of a contractor must be registered no later than 60-days from either the date on which a copy of the certificate or declaration of the substantial performance of a contract is published (if there is one), or the date the contract is completed, abandoned or terminated.[4] The same limitations for preserving a lien can be applied to a subcontractor or sub-subcontractor, in addition to, no later than 60-days from: (1) when the person last supplied services or materials to the improvement; and (2) when the subcontract is certified to be completed.[5] Perfection Once a lien is preserved, it must be perfected and enforced by commencing a court action in the Superior Court of Justice. The Act states: “a lien that has been preserved expires unless it is perfected prior to the end of the 90-day period next following the last day, under section 31, on which the lien could have been preserved.”[6] When a lien attaches to the premises a lien claimant must also register a certificate of action on the title. What happens if you miss a deadline?If a lien claimant misses a deadline, they will lose their right to lien and may not see any payment. Unless a lien is preserved and perfected under the above timelines, it will expire.[7] If one loses the enforcement muscle of a construction lien by missing the deadlines, their recourse is through traditional enforcement by commencing a statement of claim. In addition, according to section 37 (1) of the Act, a perfected lien also expires immediately after the second anniversary of the commencement of the action that perfected the lien unless:An order is made for the trial of an action in which the lien may be enforced; orAn action in which the lien may be enforced is set down for trial.[8] When a lien has expired under the section 37 (1) provision, a motion may be made and the court shall make an order dismissing the action to enforce that lien or order that the registration of a claim for lien be vacated.[9] If a court declares expiration and dismisses the action, then any amount that has been paid into the court in respect of that action would be returned to the person who paid the amount into court, and any security in respect of that action shall be cancelled.[10] As such, a discharge of a lien is irrevocable and the discharged lien cannot be revived .[11]“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.” [1] The Construction Act, R.S.O. 1990, c. C.3, s. 1(1).[2] Ibid s. 1(1).[3] Ibid s. 1.2.[4] Ibid s. 31 (2)(a).[5] Ibid s. 31 (3).[6] Ibid, s. 36 (2).[7] Ibid, s. 31 (1) and 34 (2).[8] Ibid, s. 37 (1).[9] Ibid, s. 46.[10] Ibid, s. 46 (4).[11] Ibid, s. 48. Have Questions? Book a Consultation with Adam Grossi! Please enable JavaScript in your browser to complete this form.LayoutName *Email *PhoneYour Query *Submit By Fauzan SiddiquiBlog, Construction LawMay 18, 2022July 5, 2023
Employees Injured While Working from Home Could be Entitled to Workers’ Compensation Seven months into the COVID-19 pandemic, Alexandria Gentile-Patti was working from home as a telephone customer service agent for Air Canada. At the time, many Canadians brought their workplaces home to weather the pandemic. On September 25, 2020, Mme Gentile-Patti took her lunch break and ventured downstairs. After a few steps, she lost her footing and fell—sustaining an injury. For this harm, she claimed workers’ compensation. Air Canada contended that the fall had no connection to her employment; i.e., she was at home and she was not working when she fell. Ultimately, the Québec Administrative Labour Tribunal (“Tribunal Administratif Du Travail”) ruled that Mme Gentile-Patti was indeed entitled to compensation under the provincial framework for employment injuries. To be clear, the injury at home was a workplace accident for compensation purposes. It occurred only moments after she disconnected from work to take a break and eat. The COVID-19 pandemic has changed where and how thousands of Canadians work. According to Statistics Canada, nearly a third of employees aged fifteen to sixty-four performed most of their work out of their homes from 2020 to 2021.[1] This figure is more than seven times higher than it was in 2016.[2] This tribunal decision out of Québec signals that the law concerning working in virtual workplaces is still developing. The decision also shows that employees need to be protected from harm wherever and however they work. Even as measures to combat the spread of COVID-19 are rolled back, many changes to the employment landscape may be here to stay. The law will need to continue to evolve in response to these developments. Background A workplace insurance system provides benefits to employees who have been injured at work or who have workplace illnesses. A workplace insurance system is also called workers’ compensation. In Québec, the Act respecting industrial accidents and occupational diseases provides the framework under which compensation is provided for employment injuries.[3] The compensation aims to provide “physical, social and vocational rehabilitation” for an injured worker.[4] Other provinces have similar schemes. In Ontario, the Workplace Safety and Insurance Act, 1997 outlines the statutory requirements for employees to qualify for workplace insurance benefits.[5] In Ontario, an accident at work includes, “a chance event occasioned by a physical or natural cause … arising out of and in the course of his or her employment.”[6] In Québec, an accident at work consists of an “unforeseen and sudden event” which arises “out of or in the course of work.”[7] The Québec Case of Air Canada et Gentile-Patti Mme Gentile-Patti fell down her stairs in her private residence in the middle of her workday. She disconnected from her workstation to take a lunch break—ensuring that there would be no further incoming customer calls.[8] She left her dedicated work area on the second floor to go to a separate space to eat. Her employer, Air Canada, asserted that Mme Gentile-Patti was not working when she fell. Quite literally, she disconnected from work immediately prior to the accident. Further, Air Canada had no control whatsoever over Mme Gentile-Patti’s home environment. The accident occurred during her private life (or in her “personal sphere”) which was not connected to her work.[9] In sum, Air Canada contended that Mme Gentile-Patti’s injury was not the result of a workplace accident and that she should not be entitled to workers’ compensation. Criteria to determine whether a work accident occurs during the performance of work have been developed by Québec jurisprudence. These factors include location, time, remuneration for the activity, degree of authority exercised by the employer over the employee, purpose of the activity, whether the activity was incidental, and connection of activity to the performance of work.[10] The Tribunal noted that these criteria are to be considered together, with a particular focus on the connection of the purpose of the activity to the performance of the work.[11] The Tribunal noted that there was no distinction drawn by the statute when an accident occurs in the employer’s establishment, in the employee’s private residence, or elsewhere.[12] For example, workplace accidents have occurred in a hotel room, convention halls, and parking lots.[13] There was nothing to suggest that a personal residence should be specifically excluded from this analysis. In Mme Gentile-Patti’s case, the very reason why she was at home at that time was because it was required by her employer.[14] Even though Mme Gentile-Patti was on break in her home, it was integral to the way she worked. The schedule—which contemplated taking breaks—was a key feature of how the work was organized. The Tribunal noted that a high degree of precision about the specific activity at the very moment the accident occurred (i.e., going to eat), was not necessarily determinative.[15] The Tribunal concluded that Mme Gentile-Patti’s fall down the stairs—of her private residence while going to perform a personal activity, while on break from working—was nonetheless a workplace accident for compensation purposes. Discussion and Conclusion As employees invite more of their work lives into their homes—out of either necessity or convenience—the distinction between work and personal spheres becomes less clear. In light of the rapid changes to the Canadian employment landscape in the face of COVID-19, the law is evolving to adapt to these new realities. Accidents which may have an initial appearance of being purely of personal character may qualify as workplace accidents. However, it remains to be seen how this Québec tribunal decision will influence or be received in Ontario. Employers in Ontario have a statutory duty to safeguard the health and safety of their employees pursuant to the Occupational Health and Safety Act.[16] By law, an employer must take every reasonable precaution to maintain a safe working environment.[17] But it remains to be seen what steps employers could reasonably take to protect employees in their own homes. This uncertainty is all the more pronounced when the theoretical limits of what constitutes a home workplace are not well-defined. Mme Gentile-Patti was injured near where she was working, while she was not working. The fact that the Tribunal found a sufficient nexus between the accident and her work suggests that the Tribunal contemplates a very large sphere where work-“adjacent” activities could be considered work activities. For more flexible work arrangements, even more of employees’ time—and even more of the places they go—could be considered part of their work sphere. In an era where a third of Canadian employees are performing most of their work at home, and where more and more activities could be considered performed “in the course of employment,” the law will need to respond by clearly articulating certain limits. If you have any questions about workers compensation while working from home or employment law generally, please 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 situations and needs.” [1] Statistics Canada, Working from home during the COVID-19 pandemic, April 2020 to June 2021 (Ottawa: Statistics Canada, 4 August 2021). [2] Ibid. [3] Act respecting industrial accidents and occupational diseases, CQLR c A-3.001, s 1. [4] Ibid. [5] Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Schedule A. [6] Ibid, ss 2(1), 13(1). [7] Gentile-Patti, supra note 1 at para 10 (“Un accident du travail est constitué d’un événement imprévu et soudain qui survient par le fait ou à l’occasion du travail”). [8] Ibid at para 7. [9] Ibid at paras 9-10. [10] Plomberie & Chauffage Plombec inc et Deslongchamps, CALP 51232-64-9305, 17 January 1995, B Lemay, cited by Gentile-Patti, supra note 1 at para 11. [11] Tremblay et Société des Alcools du Québec, CLP 287024-62B-0604, 21 February 2007, N Blanchard, at para 27 cited by Gentile-Patti, supra note 1 at para 12. [12] Gentile-Patti, supra note 1 at paras 11, 14. [13] Ibid at para 16. [14] Ibid at para 18. [15] Savard et Centres jeunesse Montérégie, 2021 QCTAT 2659 (CanLII) at para 21, cited by Gentile-Patti, supra note 1 at para 19. [16] RSO 1990, c O.1. [17] Ibid, s 25(2)(h). By Fauzan SiddiquiBlog, Employment LawMay 4, 2022March 27, 2024
Vicarious Liability and Employer’s Responsibility The Court of Appeal recently upheld the decision made in the case of Dagenais v. Pellerin, 2022 ONCA 76 which calls into question the scope of vicarious liability of an employer. This article will discuss how the court came to its reasoning, as well as outline the test for finding vicarious liability and the relevant case law referenced to reach this decision. Vicarious liability involves placing the liability for one’s actions or inaction upon another person due to the nature of their relationship. This can include a parent and child, an employer and employee, an owner of a vehicle and the driver. At Common Law, an employer can be vicariously liable for the wrongful acts by an employee in the course and scope of their employment. In Canada, this is a form of strict liability. While vicarious liability does not look to evaluate the culpability of an employer, it executes accountability based on a factual situation, once one has been established. Case Law Upheld The recent decision in Dagenais v. Pellerin, 2022 ONCA 76, was upheld by the Court of Appeal. The motion judge found that the employer failed to demonstrate that they were not vicariously liable for the motor vehicle accident. The employee had been instructed by his supervisor to travel to a job site two hours away. While travelling, the employee stopped for a coffee along the way. As the employee returned to his vehicle and continued his journey, he struck another vehicle. The stop taken by the employee was found to have no basis or interference, thus meeting the standard for the first part of the Salmond Test, which is the test to determine vicarious liability. The Test for Vicarious Liability The test for vicarious liability is known as the Salmond Test which was affirmed by the Supreme Court of Canada Bazley v. Curry [1999] 2 S.C.R 534. The Salmond Test posits that employers are vicariously liable for: Employee acts authorized by the employer; Unauthorized acts so connected with the authorized acts that they may be regarded as modes of doing an authorized act, as shown in Canadian Pacific Railway Co. v. Lockhart, [1942] A.C. 591 at 599 (P.C.) Claimants must show that they have a valid cause of action against an employee for a fault they committed within the scope of their employment. This is linked to the idea that enterprises should be responsible for the risks they introduce into society, according to Justice McLachlin. Off-Duty Conduct The scope of vicarious liability could range in inclusion; in particular, off-duty conduct as seen in the case of Cimpean v. Payton [2008] O.J. No. 2665. The Ontario Superior Court has stated that “acting in the course of employment” is dependent upon each set of facts. After reviewing the employee contracts, it was found that the employment relationship extended to include responsibility for the behaviours outside of the workplace. Thus, impugned conduct can potentially be tied to the employee/employer relationship and thus holding the employer vicariously liable. Specifically, if the conduct advanced the employer’s interests, if the employee was in the process of performing an authorized act or if the employment relationship was not too isolated from the conduct. Conclusion Employers should be mindful of any acts of their employees that could potentially lead to reputation risk and financial consequences. Employers may be shocked to learn that despite the fact that they are not at fault for their employee’s accident, an employer may still be held liable, vicariously, for their employee’s actions or inactions. Where this will have a severe impact on an employer is if the employee is at fault, and the insurance coverage of the vehicle is not enough to cover a potential plaintiff’s damages. The employer, much like an at-fault party may be held personally liable for any amounts awarded which exceed the insurer’s policy limits. Through the case law mentioned, the courts have found that a finding of “acting in the course of employment” is dependent on specific facts relating to each case. However, reviewing employee contracts along with the status of their insurance coverage, with an experienced insurance and employment lawyer could assist in minimizing future risk. If you have any questions regarding vicarious liability, your employment contract and any potential impact on your workplace, please contact our employment law department at info@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 situations and needs.” This blog was co-authored by Angela Victoria Papeo* By Fauzan SiddiquiBlog, Employment LawMarch 31, 2022March 27, 2024
High Threshold for an Employer to Establish Job Abandonment (Hettrick v. Triple F Paving Co. Ltd., 2021 ONSC 208) Facts: A 73-year old employee, who worked for the employer since 1996 and who performed the roles of receptionist, bookkeeper and office administrator, went on a medical leave of absence on September 29, 2015. The employer requested a medical certificate at this time. The employee did obtain a medical note from her physician dated November 27, 2015, which indicated that she was not well enough to return to work and that her return to work date was “indefinite”, but did not provide the letter to her employer due to her mental health state at the time. On September 15, 2017, and September 25, 2017, the employee wrote the employer to advise that she could return to work on a graduated basis and with modified duties. The employer did not respond until November 6, 2017. The employer’s correspondence took the position that because the employee did not provide a medical note in 2015 in response to the employer’s request, she had abandoned her position. Decision: The court concluded that the employee had not abandoned her position and was therefore entitled to a severance package of eighteen (18) months. Significantly, the court determined that the employer never specifically advised the employee that a medical certificate would be required in order for the medical leave to be approved. The employee asked the employer whether any additional information would be needed to process her request for medical leave, but the employer did not answer the question. The court further concluded that at the time of the leave, the employee communicated to the employer that it was her intention to return to work when she was medically fit to do so. In arriving at its decision, the court applied the objective test for job abandonment, as set out in Betts v. IBM Canada Ltd. in paragraph 57: “[D]o the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract[?]” Takeaway: This decision establishes a high threshold for an employer to prove that an employee has abandoned their job. The employer must make it clear to the employee that failure to comply with a reasonable request (such as providing a medical note) will result in the employer considering the employee to have abandoned their job. Even then, there is no guarantee that the employer will succeed in establishing job abandonment, in particular situations where an employee is on medical leave but has failed to provide proper medical documentation (or any medical documentation at all). Employers can also follow up with employees on medical leave on a regular basis to obtain updated medical documentation about the employee’s prognosis. If the medical evidence indicates that the employee will not be able to return to work and perform the basic duties of their job, with or without accommodations, within the reasonably foreseeable future, their employer can take the position that the employment contract has been frustrated, and if the employer is successful, the employee would receive only their minimum entitlements under the Employment Standards Act, 2000. In this scenario, they would not be entitled to a reasonable notice period at common law. If you have more questions related to employment law matters, please visit our website or contact Marty Rabinovitch at Devry Smith Frank LLP to discuss any questions regarding your rights and options. This blog was co-authored by Student-At-Law Amar Gill. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] Hettrick v. Triple F Paving Co. Ltd., 2021 ONSC 208 By Fauzan SiddiquiBlog, Employment LawMarch 28, 2022March 27, 2024
Employees Must Disclose Vaccination Status where an Enforceable Vaccination Mandate Exists, but Employers are Cautioned to Protect Employee Privacy It is likely that employer policies with respect to COVID-19 will be enforceable only where reasonable in the full context of all the facts and circumstances. A policy for mandatory vaccination may be unreasonable where practical alternatives exist. Most importantly, what is reasonable under one set of circumstances may be unreasonable in another. But whether an employee is vaccinated or not, should they be compelled to disclose their status to an employer? Where disclosed, how jealously should the employer safeguard this information? Background Employers may create COVID-19 policies for employees with respect to testing, restrictions, vaccination, and disclosing vaccination status. Certain aspects of these policies may be enforceable—others may not be. These various aspects could fall under four categories: testing, restrictions, vaccination, and disclosure of vaccination policies. Courts have not (yet) provided any guidance to employers with respect to what kinds of these categories of policies will be enforceable. However, labour arbitration decisions may yield insight as to what kinds of policies will be enforced by the courts. For a more fulsome explanation, see our related blog with respect to the Reasonableness and Enforceability of Mandatory COVID-19 Vaccination Policies in the Workplace. Disclosing Vaccination Status is a “Minimal Intrusion” into the Privacy of Employees In the labour arbitration decision of Electrical Safety Authority (ESA) v Power Workers’ Union, it was decided that requiring an employee to disclose medical information, such as vaccination status, “must be reasonably necessary and involve a proportionate response to a real and demonstrated risk or business need.”[1] But, in Bunge Hamilton Canada v UFCW Local 175, it was held that disclosure of vaccination status would be a minimal intrusion into the employee’s right to privacy, being considerably outweighed by “enormous public health and safety interests.”[2] In one decision, challenging a policy to disclose vaccination status was determined to be effectively a challenge to the vaccination policy itself. In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (MLSE), an employee was placed on unpaid leave for failing to disclose his vaccination status.[3] The union did not dispute the mandatory vaccination policy but contended that an employee’s vaccination status is private and should not be subject to disclosure. Ultimately, the arbitrator ruled that: “I do not see how the Employer can enforce a vaccine mandate without requiring disclosure of an employee’s vaccine status.”[4] Therefore, when a policy for vaccination is reasonable and enforceable, it is likely that a policy to disclose vaccination status will also be enforceable. Employers Should be Vigilant in Safeguarding Employee’s Personal Medical Information, such as Vaccination Status When vaccination status is disclosed, the privacy concerns of employees must be addressed. Employers are strongly recommended to keep the information confidential, safe, and secure. The privacy rights of employees are not well articulated under any statutory framework. The Occupational Health and Safety Act contemplates protecting employees in general—but it is silent with respect to protecting employees’ privacy interests.[5] Similarly, the Ontario Personal Health Information Protection Act, 2004 does not specifically articulate protections in an employment context.[6] Federal legislation may offer some protection through the Personal Information Protection and Electronic Documents Act and the Privacy Act, but again, neither offer concrete protections for employees in the workplace.[7] Informational privacy rights are recognized and protected under the common law. In Jones v Tsige, the Ontario Court of Appeal described that “intrusion upon seclusion” is a nominate tort and is available as a cause of action.[8] Under the holding in Jones, the intrusion must be either intentional or reckless.[9] Indeed, the labour arbitration decision of ESA, supra, referred to the Jones decision to justify its holding that employees’ privacy rights are significant.[10] There is, as yet, no Ontario jurisprudence that found an employer liable for damages in tort for breaching the privacy of its employees. However, employers would be cautioned to nonetheless tread carefully. Employers must constantly engage in a balancing exercise between the privacy of their employees and the needs of the business, and the official recognition of the tort of inclusion upon seclusion makes this exercise all the more challenging. A recent example reveals the potential risk for employers when managing COVID-19 policies. The Saskatchewan Health Authority (SHA) had a program for mandatory COVID-19 testing to accommodate unvaccinated employees. On February 11, 2022, the employer sent a mass email to participants of the program. However, employee names were “inadvertently added to the CC (carbon copy) field, instead of the BCC (blind carbon copy) field.”[11] Consequentially, participants of the program were identified to each other. SHA took the position that this error did not actually reveal the vaccination status of any employee, as it only identified participants of the program. At least one employee remarked that the implication was there nonetheless. Consequences for SHA—if any—are not yet known. Conclusion Labour arbitration decisions have held that in order to have an effective COVID-19 vaccination policy, employees need to disclose their vaccination status to their employers. An employee disclosing their vaccination status to their employer may well be only a “minimal intrusion,” but the same can not be said if an employer recklessly mishandles sensitive information. In light of the fact that breaching informational privacy rights may give rise to liability in tort under the common law, the potential risk to employers is clear. Employers would be well advised to shore up their privacy policies and practices in light of any mandatory COVID-19 vaccination policies and disclosure requirements. Employers are duty-bound to protect their employees, and this protection must necessarily take many forms. If you have any questions about Vaccination Status in the workplace or employment law generally, please 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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” References [1] Electrical Safety Authority v Power Workers’ Union (7 November 2021) arbitrator: John Stout at paras 37-38 [ESA]. [2] Bunge Hamilton Canada, Hamilton, Ontario v United Food and Commercial Workers Canada, Local 175 (13 December 2021) arbitrator: Robert J Herman at para 25. [3] Teamsters Local Union 847 v Maple Leaf Sports and Entertainment (12 January 2022) arbitrator: Norm Jesin [MLSE]. [4] Ibid at para 20. [5] RSO 1990, c O.1. [6] SO 2004, c 3, Sched A. [7] SC 2000, c 5; RSC, 1985, c P-21. [8] Jones v Tsige, 2012 ONCA 32 (CanLII) at para 66. [9] Ibid at para 71. [10] ESA, supra note 1, at para 63. [11] Yasmine Ghania, “Sask. Health Authority accidentally outs employees who were part of mandatory COVID testing program,” (16 February 2022) online: CBC News <cbc.ca> By Fauzan SiddiquiBlog, Employment LawMarch 22, 2022March 27, 2024
Tax Court Decision Bank of Nova Scotia v The Queen, 2021 TCC 70: Interest Accrues Until the Date of Post-Audit Loss Carryback Request Takeaway: Tax Court finds that interest accrues until the actual date of loss carryback request: Case Summary: Bank of Nova Scotia v The Queen, 2021 TCC 70 In this recent decision, the Tax Court of Canada was tasked with interpreting paragraph 161(7)(b) of the Income Tax Act (the Act), and the timing of loss carrybacks for the purpose of calculating interest on an outstanding tax balance. When a taxpayer makes a written request to carry back non-capital losses to offset tax payable that arose in a previous taxation year, the Court held that arrears interest accrues from the balance due date of a taxation year to which a loss is applied until the date the carryback request is made. This resulted in a significant cost for the taxpayer due to a carryback request made almost six years after the balance due date. Facts: The taxpayer was a Canadian bank, with a taxation year ending on October 31. On April 28, 2009, the taxpayer filed its 2008 income tax return and reported a non-capital loss of approximately $4 billion. During the 2013-2014 calendar years, the CRA performed an audit of one of the taxpayer’s foreign subsidiaries and reviewed income tax returns for the tax year-ends 2006 to 2010. In February of 2015, the CRA issued a proposal letter to the taxpayer in respect of the audit of the 2006 taxation year. The parties agreed to enter into a settlement agreement involving certain transfer pricing adjustments to the taxpayer’s returns for the period of 2006 to 2014, which would result in an increase to the taxpayer’s 2006 taxable income of roughly $54.9 million. In March of 2015, the taxpayer wrote back to the CRA requesting that $54 million of the non-capital losses that arose in the taxpayer’s 2008 taxation year be carried back to offset the increase of the $54.9 million of income that arose in the 2006 taxation year due to the CRA’s transfer pricing adjustments. Shortly thereafter, the CRA issued a notice of reassessment for the taxpayer’s 2006 taxation year, whereby the taxpayer’s taxable income for 2006 was increased by $54.9 million, in accordance with the agreed-upon terms. Along with this, a corresponding adjustment of the 2008 non-capital loss of $54 million was also carried back and applied to offset the increased income, however, the CRA assessed arrears interest of appropriately $7.9 million, representing interest that accumulated from 2006 to the deemed payment date of March of 2015, the date when the taxpayer requested the loss carryback. The taxpayer disagreed with the CRA’s application and calculation of arrears interest and appealed to the Tax Court. Issue: At issue was for the Court to decide the deemed payment date for the purpose of calculating arrears interest when a loss carryback is applied. Tax Court Decision: On appeal, the Tax Court held – based on the specific wording of the statute – that if an amount of tax payable for a taxation year (i.e., the 2006 taxation year) is reduced because of the carryback of losses from a later year (i.e., from the 2008 taxation year), interest on any unpaid tax for the 2006 taxation year is to be calculated as if no reduction occurred until 30 days after the latest of the following dates: The first day immediately following the loss year = November 1, 2008 The day the taxpayer’s income tax return for the loss year was filed = April 28, 2009 If the CRA reassessed the taxpayer’s tax for the year to take into account the loss deduction as a consequence of a written request, the day on which the request was made = March 12, 2015 Taxpayer’s Argument The taxpayer’s position was that interest arrears should be calculated based on the date that the taxpayer filed its income tax return for the year the loss was filed – April 28, 2009, as opposed to the date on which the loss carryback request was made – March 12, 2015. The taxpayer relied on the authority of the Methanex3 case in support of its position – that interest should be calculated based on the filing date of the loss year return. CRA’s Argument The CRA’s position was that interest should be calculated based on the date on which the taxpayer made its written request for the carryback loss – March 12, 2015. CRA argued that the existence of a loss carryback in a subsequent year does not mean that tax debt from an earlier year was never owed. CRA’s position was that the specific language of paragraph 161(7)(b) is clear in that the tax debt of an earlier year is owed until a formal loss carryback request is filed. The CRA relied on the authority of the Connaught4 case in which the Federal Court ruled that where losses are carried back and result in no tax payable, arrears interest continues to accrue on the tax that would have been payable but for the loss carryback until the formal request is made. The Federal Court in that case also found that the wording of the relevant provision was unambiguous and that the CRA’s interpretation of it did not contravene the object, spirit or purpose of the Act. Tax Court’s Analysis The trial judge disagreed with the taxpayer’s argument, stating that in a self-assessing system, the onus is on the taxpayer to ensure its taxes are paid on time. Despite the fact that the balance was discovered later during an audit, the taxpayer was liable for tax owing regardless by virtue of the operation of the Act. In other words, a formal assessment issued by CRA is not necessarily determinative of a taxpayer’s actual tax liability which is inherently a question of law. The court agreed with the CRA, in that the current instance was more similar to the Connaught case than the Methanex case, and that Methanex was either wrongly decided or its reasoning could not be applied to an appeal under the federal Income Tax Act. It should be noted that the Methanex case was decided by the Alberta Court of Appeal and related to a provincial taxing statute, not the federal Income Tax Act. In sum, the court found that the wording of paragraph 161(7)(b) was unambiguous and that Parliament’s intention was in accordance with the CRA’s position. For these reasons, the appeal was dismissed. Takeaways The end result of this case proved to be costly for the taxpayer. One could argue that this interpretation of the provision results in interest accruing on a balance that did not exist, or at the very least existed only for the period until such time as losses became available to be carried back. Related to this point, the Tax Court noted that the Tax Act contemplates retroactive or retrospective liability following a reassessment in a self-reporting system. However, if a taxpayer does not know about a tax liability until many years later, for example after an audit, it seems unfair that they should have to pay interest for the intervening years. It is worth noting that in the past, the CRA has acknowledged that the purpose of paragraph 161(7)(b) was to prevent situations where a taxpayer deliberately refused to pay taxes in a year, in anticipation of incurring losses in a subsequent year that could be carried back to eliminate the previous year’s tax liability. Where there were no indications of such tax avoidance, the CRA has in some circumstances be willing to accept that arrears interest should accrue only until the filing date of the taxpayer’s loss year tax return, and not until the day of the request for loss carryback. It would thus appear that the CRA has not been consistent over the years in its approach to applying the provision. Taxpayers who are being audited and may have carrybacks or carryforwards available to offset any potential “new” tax liabilities should consult immediately with a tax lawyer to determine what, if anything can be done to try and minimize this unexpected and often costly expense. If you have any questions, please visit our tax law page or contact Nathaniel Hills at Devry Smith Frank LLP. This blog was co-authored by Student-At-Law Amar Gill. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] Bank of Nova Scotia v. The Queen, 2021 TCC 70 (CanLII) [2] Connaught Laboratories Ltd v. Canada, 1994 CarswellNat 1133 (FCTD). [3] Alberta (Provincial Treasurer) v. Methanex Corporation, 2004 ABCA 304 (CanLII), affirming Methanex [4] Corp v. Alberta (Provincial Treasurer), 2003 ABQB 157 (CanLII) By Fauzan SiddiquiBlog, TaxMarch 10, 2022March 27, 2024
Canada Loosened COVID-19 Testing Requirements for Travelers on February 28, 2022 The Public Health Agency of Canada (the “Agency”) is a federal government agency with a mandate to prevent disease and respond to public health threats. The federal Quarantine Act (the “Act”) authorizes various activities to protect public health including measures that can be taken in respect of international travellers.[1] Under the authority of the Act, the Agency issues Orders in Council (“Orders”) to describe emergency protocols applicable during the coronavirus pandemic.[2] The conditions of the pandemic are dynamic. For example, the emergence of the Omicron variant presented an additional challenge to the government to ensure that Orders reflect the circumstances of the day. Keeping Canadians, permanent residents and other travellers safe is an activity requiring continuous review. Throughout the pandemic, the Agency has been revising the OICs almost every month. Travellers are strongly advised to consult the latest Orders for the most up-to-date requirements and guidance. New Orders In Force as of February 28, 2022 Two new orders came into force on February 28, 2022: 2022-0177 (Prohibition of Entry into Canada) and 2022-0178 (Quarantine, Isolation and Other Obligations). The highlights of which, with respect to testing, are as follows. Background Foreign nationals who are not fully vaccinated may not enter Canada. Foreign nationals who are symptomatic, or suspect or know that they have COVID-19 also may not enter Canada. There are certain exceptions for foreign nationals accompanied by family, seeking to be with family, for young adults seeking to attend a designated learning institution, or for adults who require support by reason of a mental or physical limitation. For details of the additional exceptions and provisions, review the text of the Orders. The focus of this article is on testing, as follows. Testing To enter Canada, all travellers (Canadians and foreign nationals)—with exceptions outlined below—must provide evidence of: a negative COVID-19 molecular test performed outside Canada on a specimen collected at most seventy-two (72) hours before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea; a negative COVID-19 antigen test performed outside Canada on a specimen collected at most one (1) day before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea; a positive COVID-19 molecular test performed on a specimen collected at least ten (10) days before the initial scheduled departure of an aircraft, or before the time entering Canada by land or by sea (no more than 180 days ago). Travellers arriving in Canada who qualify as fully vaccinated will be randomly selected for arrival testing, however, they will not be required to quarantine while awaiting the result. For those travelling by air, the evidence must be provided to the aircraft operator. For those travelling by land or by sea, the evidence must be provided upon request of a screening or quarantine officer. Unvaccinated travellers will also be required to test on arrival, on day eight (8), and will be required to quarantine for fourteen (14) days. Taking a rapid antigen test at home is not sufficient to meet the pre-entry requirement—it must be authorized by the country in which it was purchased and must be administered by a laboratory, healthcare entity, or telehealth service. Not all travellers must provide this COVID-19 testing evidence. Exceptions include a person who is less than five years of age, emergency service providers, certain public officials, Canadian Forces members, or a person who returns to Canada after suffering hardship in a foreign country. This is not an exhaustive list; see Schedule One of Order 2022-0178 for the complete list. Notably, an operator of a commercial motor vehicle for the transport of goods by land who is not fully vaccinated is not exempted. Conclusion The loosening of testing requirements for travellers reflects the declining number of COVID-19 cases in Canada. This trend is in part attributable to Canada’s high vaccination rate, and to the increased availability of rapid testing. The conditions of the pandemic are dynamic, and the official response evolves along in parallel. Travellers are strongly advised to consult the latest Orders for the most up-to-date requirements and guidance. [1] SC 2005, c 20. [2] Ibid, s 58. “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 contact a lawyer. Each case is unique and different 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 4, 2022March 4, 2022
To Probate or Not to Probate? It is a common assumption among estate trustees that in order to administer an estate, a deceased’s Last Will and Testament must always be probated; that is, submitted to the court along with an application and supporting documents in a process whereby the court examines such Will in order to determine its validity and authenticity, as well as to ensure that the proper estate trustees are appointed and beneficiaries notified. Where a deceased passes away without a Will, the probate process ensures that estate trustees are appointed in accordance with legislative rules. A brief note on terminology: the term probate is no longer officially used in Ontario. It has been replaced with a Certificate of Appointment of Estate Trustee With or Without a Will, or, in other jurisdictions, Letters Probate or Letter of Administration. Despite that where a Will exists the authority of the estate trustee(s) is derived from the Will itself, a Certificate of Appointment of Estate Trustee serves as an assurance to third parties that the estate trustees are the proper appointees and have authority to deal with the deceased’s assets. For example, many financial institutions are reluctant to release the money to estate trustees without a Certificate of Appointment because of the liability that they may incur as a result of releasing money to an estate trustee under an invalid Will or an estate administrator who is not entitled to act. Equally, purchasers of a deceased’s real estate will seek to ensure that a Certificate of Appointment of Estate Trustee has been issued prior to the closing of the transaction. Third parties rely on the probate process to ensure that estate property is being held by individuals with the authority to do so and is transferred to the appropriate persons. Some assets, however, can be transferred without a Certificate of Appointment, either because of their nature or their ownership. These include vehicles and vessels, jointly owned assets (which pass by right of survivorship or must be dealt with in accordance with the Will under presumptions of resulting trust), real property falling under the first dealings exemption, and registered accounts with designated beneficiaries. Accordingly, it is important to ascertain the nature and ownership of the deceased’s assets prior to commencing the probate process in order to ensure that estate property is dealt with in an expedient and cost-effective manner. Crucially, whether or not a Certificate of Appointment of Estate Trustee is issued, estate trustees remain responsible for accurately identifying the deceased’s property, ascertaining its value, ensuring that all taxes and debts are paid, and distributing such property in accordance with the deceased’s Last Will and Testament or, where a person died without a Will, in accordance with legislative provisions. Please feel free to reach out to any of Devry Smith Frank’s estate administration lawyers to learn more about whether or not probate is required in an estate for which you have been appointed as trustee. “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 contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesMarch 1, 2022