Supreme Court of Canada Shuts Down Insurer Leave to appeal from the Court of Appeal’s decision in Tomec v Economical Mutual Insurance Company In 2019 ONCA 882 was recently denied by our highest court. This finally shuts down years of refusals by Economical trying to prevent another car accident victim from receiving benefits that ought to have been paid. Ms. Tomec’s 2008 car accident tragically changed her life forever. Economical refused to pay attendant care and housekeeping benefits which became much more important as her condition worsened. Years later having proven catastrophic designation, Economical refused to pay attendant care and housekeeping benefits. Ms. Tomec had to appeal to the Licencing Appeal Tribunal that refused the benefits. This decision was appealed to the Divisional Court which refused to overturn the decision of the LAT. A third appeal to the Court of Appeal was finally successful and Economical was ordered to pay Ms. Tomec. Despite this, Economical attempted to appeal from the Court of Appeal and avoid its obligations. Fortunately, the Supreme Court has now shut down Economical. Victims of car accidents with serious injuries need to be aware of their rights and always need an experienced personal injury lawyer to protect their interests! “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 G63tEGnX1EBlog, Personal InjuryJune 5, 2020September 29, 2020
Canadian Spouse? Travel to Canada During COVID-19 Canadian Spouse? Travel to Canada During COVID-19 By now, you are probably aware that Canada like most other countries has implemented stringent travel restrictions on travellers to Canada in the midst of COVID-19. The restrictions affect everyone including citizens, visitors, workers, and their family members. The travel restrictions have come down in the form of Orders in Council (OICs), i.e. legal instruments created by the Governor General. While these provide basic rules surrounding restrictions and exemptions, they leave room for a lot of confusion as to how they apply in practice. This has been particularly so for spouses not currently living together in Canada where one spouse is a Canadian citizen or permanent resident and the other a foreign national. This has led to foreign nationals with Canadian spouses in Canada being frequently denied permission to travel to Canada. According to the OICs, the basic restriction against foreign nationals travelling to Canada doesn’t apply to spouses of Canadian citizens or permanent residents so long as the foreign national has no COVID-19 symptoms and can prove they’re not coming here for a discretionary or optional purpose. Unfortunately, the OICs don’t define optional or discretionary. This has led to many instances of spouses being denied permission to travel to Canada since the prevailing OICs came into effect at the end of March 2020. Airline personnel and officers of the Canada Border Services Agency (CBSA) have been tasked with assessing the travellers’ purpose in a short turnaround time based on whatever information the traveler provides. This has been and continues to be a distressing problem that keeps spouses apart longer than they perhaps intended. The Canadian government has been trying to provide further clarity by regularly updating its websites and practice directions, though these have at times led to further confusion. In perhaps what is one of the most useful updates so far, Immigration, Refugees and Citizenship Canada (IRCC) provided a substantial but non-exhaustive list of examples on April 29, 2020 of optional versus non-optional. That list clearly indicates the following are non-optional; coming to live permanently with a Canadian spouse, coming to spend the pandemic period with their spouse and to ensure each other’s wellbeing during this time, and to take care of ill family members who have no means to otherwise to do so. No doubt, spouses who fell into these categories were previously denied permission to travel up to now. Hopefully, this new direction from the IRCC will provide clearer parameters to airline personnel and CBSA officers making these tough assessments and will result in the reunion of spouses suffering the current hardship of being apart. If you, your spouse or any other family members have been denied permission to travel to or enter Canada, please contact our immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841. “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 G63tEGnX1EBlog, COVID-19, ImmigrationMay 1, 2020September 30, 2020
What to Expect With Your Family Law Matter After COVID-19 Andreina Minicozzi and Devry Smith Frank LLP are committed to following the guidelines and recommendations outlined by the Public Health Agency of Canada to ensure the safety and wellbeing of employees, colleagues, clients, friends, and families. During these unprecedented times, we understand that your family law matter may be in flux. It is important to recognize what the landscape of family law may look like in Ontario after COVID-19. This post looks at such a future. With limited relief currently available to families through the courts, these unprecedented times may change the future of family law forever. Alternative dispute resolution, which continues to be refined, has surged, and on the other hand, the courts are now forced to offer a more streamlined and efficient process. Overall, this may bode well for the family law system holistically. Alternative Dispute Resolution Alternative dispute resolution such as mediation, arbitration and collaborative family law have become staples in the legal landscape and while the courts have scaled back on the issues which they can resolve, these alternative dispute options continue strongly and have the capability to adapt to an online platform much quicker. An online mediation could allow a couple to resolve their family law matter over a shared video conference platform such as Zoom. Arbitration allows parties to hire a private arbitrator to make a decision on their dispute. Arbitration can use video conferencing for oral arguments and cross-examination, and documents can be exchanged electronically in moments. Litigation can be lengthy and expensive, but with the health of alternative dispute resolution maintaining its position in the legal landscape amid such a crisis, you can expect many more family law matters to engage with the justice system through mediation, arbitration, and collaborative family law given their streamlined service and ability to adapt to changing landscapes. A Streamlined Court System Canadian courts are now also rapidly updating their procedure to accommodate litigants through remote access and virtual hearings. Even such processes like notarizing documents and signing affidavits have been adapted to accommodate the need to changes in this current landscape. We have also seen an advanced email filing system for many Ontario courts The longer social distancing is required, the more the courts will need to adapt, increasing the options for remote or virtual hearings and streamlining further processes. This is also stated with the understanding that there will be a predictable influx of new and ongoing family law matters that need to be addressed once the restrictions relating to COVID-19 are lifted. Even long after Canada has recovered from COVID-19, you can expect such streamlined processes in family law to remain as the new norm or at least a viable option for litigants; a welcomed culmination of a time where the entire world was forced to adapt for the better. What may result is a more modernized court process through technology and expediency, and one predicated on efficiency. Conclusion The future of family law may just mean a move away from the courts to other dispute resolution platforms, and a nuanced family court process that is more streamlined and efficient. Nevertheless, while understanding the future of family law is intricate, developing and dynamic, for many, the future is now. If you believe your family law matter requires urgent attention by the courts, please do not hesitate to contact Andreina Minicozzi at Devry Smith Frank LLP to have your rights assessed and protected. By G63tEGnX1EBlog, COVID-19, Family LawApril 29, 2020September 30, 2020
The CERB criteria has expanded: Am I eligible? This blog is co-written by our former articling student, Janet Son. On April 15, 2020, the federal government announced the expanded eligibility criteria for the Canada Emergency Response Benefit (“CERB”), upon mounting criticism that many workers were unable to collect the CERB despite being financially impacted by COVID-19. The following changes have been made: Now workers can earn up to $1,000 per month in employment and/or self-employment income while collecting the CERB. Some examples: A gig economy worker has lost 80% of their jobs due to COVID-19 however the remaining 20% they earn $1000 for the month. They can still collect the CERB, which means total potential earnings of $3000 per month while receiving the benefit. A worker held two part-time jobs. They were laid off from one of their jobs due to COVID-19, however they are still working at the second part-time job. If the second job pays less than $1000/month, they are able to continue to work while receiving the $2000 benefit. A retail worker is receiving $1000 per month from a relief fund set up by the company they work since the store they work for is closed. They can still apply for the CERB and receive the $1000 from the relief fund. An office worker has had their pay cut to $1000 per month along with reduced working hours. They can continue to work and earn up to $1000 per month from their company while also receiving the CERB. Seasonal workers who have exhausted their Employment Insurance (EI) regular benefits and are unable to undertake their usual seasonal work as a result of the COVID-19 outbreak. For example, those who work in commercial fishing, construction or resorts who work for a period of the year and would typically receive EI for the remaining months and now cannot return to those jobs due to COVID-19 are eligible for the CERB benefit. Workers who recently exhausted their EI regular benefits between December 29, 2019 and October 3, 2020 and are unable to find a job or return to work because of COVID-19 For example, if you are collecting EI which is set to end May 1, 2020 and you are unable to find a job because of COVID-19, you can switch to receiving the CERB if you meet all the other criteria If you are an essential worker that makes less than $2500 per month, you will soon be eligible to receive a temporary salary top-up. Details of this program will be released shortly. There are likely to be further changes in the CERB eligibility requirements, in particular for students who are currently ineligible for the CERB and yet have no prospects for summer employment. If you are a student who earned at least $5000 during 2019 from a summer job, part-time work during the school year, and/or a co-op term, you are eligible for the CERB if you had a job offer for the month of May that has been deferred for at least 14 days. If you have more questions about your eligibility for the CERB, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca By G63tEGnX1EBlog, COVID-19, Employment LawApril 20, 2020September 30, 2020
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 G63tEGnX1EBlog, COVID-19, Employment LawApril 15, 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 G63tEGnX1EBlog, Cannabis LawApril 8, 2020September 30, 2020
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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, seek forfeiture of the deposit monies and commence an action for damages suffered. YOU MAY BE ELIGIBLE FOR THE FIRST-TIME HOME BUYER INCENTIVE The First-Time Home Buyer Incentive enables first time home buyers the opportunity to reduce their monthly mortgage payment 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 that 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 G63tEGnX1EBlog, Real EstateMarch 11, 2020September 30, 2020
What is a Continuing Power of Attorney for Property? A Continuing Power of Attorney for Property is a legal document in which you can appoint a person or persons to act on your behalf (called an “Attorney”) with respect to your property and financial affairs. The document will allow them to make decisions for you if you become incapable of managing your financial affairs. *The term “Attorney” refers to the person or persons you have chosen to act on your behalf. He or she does not have to be a lawyer. WHO YOU CAN APPOINT AS YOUR ATTORNEY FOR PROPERTY You can choose anyone you want as your Attorney as long as he or she is eighteen (18) years of age or older. You can also choose multiple people to act. If you appoint more than one person, you can state that the Attorneys are to act “jointly” or “jointly and severally”. If the Attorneys are appointed “jointly”, this means that they will be required to act together at all times. If the Attorneys are appointed “jointly and severally”, this means that either of the Attorneys named can act independently. If you name the Attorneys “jointly”, the advantage is that there is always a second person “double checking”. A disadvantage of naming the Attorneys “jointly” is the lack of flexibility – say, for example, if one Attorney is temporarily unavailable because of vacation, the available Attorney will not be able to make any decisions without the second person. APPOINTING A TRUST COMPANY AS YOUR ATTORNEY FOR PROPERTY Some people prefer to appoint trust companies (many of the big banks offer trust services) because they are professional and impartial. WHAT HAPPENS IF THE PERSON YOU CHOSE IS DECEASED, IS INCAPABLE, OR DOES NOT WANT TO ACT AS YOUR ATTORNEY FOR PROPERTY? If two or more Attorneys act jointly under the Continuing Power of Attorney and one of them dies, becomes incapable of managing property, or resigns, the remaining Attorney or Attorneys are authorized to act, unless the power of Attorney provides otherwise. If only one primary Attorney was named, you can name a substitute Attorney, and the substitute can act. DATE OF EFFECTIVENESS OF THE POWER OF ATTORNEY FOR PROPERTY We generally recommend that the Power of Attorney give your Attorney legal authority as soon as the document is signed. However, you can specify otherwise in the document. For example, some people only want the document to be effective upon a specific date or specific event (such as the Attorney obtaining a letter from your family physician which states that you are mentally incapable and cannot manage your property). An advantage of giving your Attorney legal authority as soon as the document is signed is that your Attorney will not need to go through formal processes to prove to third parties, such as banks, that the Power of Attorney has come into effect. IS MY ATTORNEY ENTITLED TO COMPENSATION? Your Attorney is entitled to take payment at a rate set out by the law, unless you say otherwise in the Power of Attorney for Property. If you want to prohibit your Attorney from taking any payment or you want to set a specific amount yourself, you can do this by including specific instructions in the Power of Attorney for Property. FIVE FACTORS TO CONSIDER WHEN CHOOSING WHO YOU SHOULD APPOINT AS YOUR ATTORNEY FOR PROPERTY Choosing an Attorney for Property is an important decision as that person will have full access to your money and other property. Trustworthiness Is the person honest? Do you know the person well enough or long enough to trust them? Will this person act in your best interest? Does the person have personal issues such as financial or health concerns that may interfere with the management of your property? Reliability Can you rely on this person? Experience Does the person understand financial matters? Availability Does the person have the time to handle your financial matters? Is the person readily available and easy to contact? Does the person live nearby? Willingness Is the person willing to take on the responsibility? Does the person understand the duties and responsibilities involved in being your Attorney? For further information or to schedule a consultation please contact Ashley Doidge of Devry Smith Frank LLP at 416-446-3348. “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 G63tEGnX1EBlog, Wills and EstatesAugust 22, 2019September 30, 2020
Medical Marijuana: Limits to Consumption in Unionized Workplaces A recent labour arbitration decision from Saskatchewan has framed what might be the boundaries around workplace consumption of medical marijuana. In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), an employee was dismissed for vaping medical marijuana while operating the employer’s vehicle. The employee had previously disclosed to his employer that he had had a prescription for medical marijuana and was allowed to vape marijuana in the workplace. The employee was not allowed to operate his employer’s vehicle for approximately 30 minutes following the vaporization of marijuana. He was also not permitted to operate heavy machinery for 1 hour after vaping. The employee was later discovered to have been vaping while driving and immediately before driving. As a result, the employer summarily dismissed the employee. The employee’s union filed a grievance challenging the summarily dismissal. The arbitration board held that, despite the lack of proof of the employee’s impairment on a balance of probabilities, the vaping of marijuana immediately prior to and while operating the vehicle entitled his employer to summarily dismiss him. The board also emphasized the fact that the employee appeared to lack respect for the limits of his employer’s medical accommodation of him, and cared little for the safety of his coworkers by vaping while other employees were in the vehicle with him. The arbitration board found the decision to summarily dismiss was not excessive discipline. The board noted that while the employee should not be deprived of using marijuana for the medical purpose intended, ultimately “there is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving.” What does this case tell us? While it is a Saskatchewan decision, the same principles apply in Ontario: having a prescription for medical marijuana is not a free licence to consume it whenever and wherever you like, particularly while working for an employer. Moreover, even if your employer has expressly accommodated you by allowing you to consume marijuana in the workplace, not adhering to the terms of that accommodation could result in dismissal without notice. It is also important to note this case applies to unionized employees, who have greater protections from dismissal than non-unionized employees. This suggests that, in a non-unionized workplace, the threshold for misconduct meriting dismissal based on the consumption of medical marijuana could be lower. According to Ontario’s human rights laws, all employers must accommodate employees with a disability to the point of undue hardship. This accommodation could include allowing employees to use medical marijuana while at work. However, employees must comply with the limits of their employer’s accommodation, so as to avoid undesirable disciplinary measures. If you would like more information about these amendments, or would like legal advice to ensure your place of work is compliant, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By G63tEGnX1EBlog, Cannabis Law, Employment LawJune 5, 2019June 16, 2020
