Learn to surf! Late in 2019, when it became apparent that the Covid-19 restrictions would remain in place, I decided that beginning a meditation/mindfulness practice might come in handy. After all, this was the time where inner peace could only be a benefit. The teacher on the app began with the saying unattributed (but I found it), “You can’t stop the waves, but you can learn to surf” – Jon Kabat-Zinn. As intended, it got me thinking. So the practice of meditation can bring something of use to mediation. That should be no surprise because even in the basic mediation courses I took in 1995, the emotional state of the participating parties was something that needed to be considered. Calming parties, increasing their comfort, reassuring them, asking them to be mindful (even if not practicing mindfulness) encourages resolution. Getting the parties to understand that trying to swim against the current (or waves) is difficult and often counterproductive. Exhausting too! If we as mediators can teach the parties to take control for themselves and manage their thoughts and the possible outcomes, essentially teaching them to surf, we are more likely than not to achieve a resolution. Enough of that analogy. I am reminded of the mediator at a continuing education programme who thought that we ought to consider burning incense in the break out rooms in order to encourage calm. Well, you won’t find me doing that in any mediation I hold, and that practice is more or less irrelevant in the Zoom environment, but it does raise an interesting issue. How to encourage the parties to be mindful, in the moment and focused during the process is a critical part of the mediation. Limiting distractions (an ever growing problem when using Zoom), maintaining focus and banishing outside thoughts is hard to achieve in the midst of a mediation, particularly with home or office Zoom interference. It is even difficult when practicing meditation. Does this sound too “touchy-feely” for a legal environment? Is it possible counsel will reject the notion that they must learn to surf? Maybe, but in the meantime, mediators already bring these concepts to mediation. You may not even know they are doing it. The better ones are, I suspect, better at it. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, MediationMarch 16, 2021March 16, 2021
COVID-19 and Collecting Personal Information The COVID-19 pandemic changed the way people do business. For many businesses, government regulations currently require operators to record the name and contact information of every person who enters the establishment and to maintain these records for at least one month. The purpose of this is to assist with contact tracing should a COVID-19 outbreak occur at an establishment. For other businesses, collecting personal information is a by-product of increasingly doing business online. Business owners must be aware of the implications when collecting this sort of private information and the laws that govern its collection. In particular, the federal Personal Information Protection and Electronic Documents Act SC 2000, c5 (PIPEDA), sets the ground rules for handling personal information in the course of commercial activities. This act applies whether businesses are collecting personal information in person or online. The following are best practices that businesses should adopt in order to be compliant with PIPEDA and other applicable privacy laws: Understand and identify the purpose for collecting private information. Do not collect more information than is necessary.Adopt privacy policies and procedures that set out the reason for collecting information, the length of time the information will be stored and its destruction procedure. Do not collect any information contrary to these procedures.Appoint someone to be responsible for privacy issues.Make information about your privacy policies and procedures available to customers.Inform customers of the purpose for collecting this information and obtain consent.Keep the information only for as long as is necessary and then destroy it using proper procedures.Use proper safeguards when storing the information. Do not leave the information in plain sight and keep it safe.Develop a simple and easily accessible complaint procedure. If a customer contacts you about a privacy concern, the customer should be informed about avenues of recourse. If you have further questions regarding collecting personal information during the era of COVID-19 or regarding your obligations under Canada’s privacy laws in general, or if you require assistance in developing effective privacy policies and procedures, please contact Esther Abecassis, lawyer at Devry Smith Frank LLP at esther.abecassis@devrylaw.ca or 416-446-3310. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Corporate Law, COVID-19March 15, 2021March 15, 2021
Canadian Post-Graduate Work Permit Extension International students in Canada often rely on the coveted post-graduate work permit (PGWP) to secure jobs after graduation, which experience often goes on to earn them essential points in Canada’s Express Entry route to permanent residence. As covered in one of our previous blogs, this valuable Canadian work experience can often make or break an international student’s chances of success in achieving permanent residency. Since the onset of the COVID-19 pandemic, holders of PGWPs have found themselves either unable to find jobs or have been let go from jobs in Canada, and many have watched their time-limited permits run out while missing the opportunity to make use of them. Canada’s Minister of Immigration, Refugees, and Citizenship just announced a temporary policy that will allow students in this position to apply for a new permit valid for another 18 months. While the job market continues to be unpredictable, this is a positive step in the right direction and provides international students already in Canada who have struggled to gather Canadian experience an extended opportunity to do so. International students who contribute more than $21 billion annually to the Canadian economy often rely on their education as a stepping stone to permanent residence to the Canadian economy. For more information contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, ImmigrationJanuary 8, 2021January 8, 2021
Sharing The Holidays After Separation Holidays can be difficult for separated families. It may be impossible for the children to celebrate with both parents and their families or to have the most important time, that is, Christmas morning, with both parents. So how can separated parents divide up those special times? Doing so can be one of the biggest challenges after separation or divorce. When it comes to holidays, the first and most important consideration is that these are special times for the children too. Often they are even more special for the children than for the adults. The children do not want to spend these special times marked by fights among their parents. Especially fights where the child must take the side of one loved parent against another loved parent. That can ruin the entire special day or the entire holiday season for the child. Parents who love and want to protect their children must avoid fights over their children at these special times. It is always more important for the children to be happy than for a parent to be right. Of course, finding a fair plan for the children over the holidays can be hard. There are a few general principles that parents can use to help them make their plans. The Golden Rule for Parenting After Separation Where a judge has to decide what time the child gets to spend with each parent over the holidays, the main consideration is what is in the children’s best interest.What is in the best interest of the child always trumps what is in the best interest of the parent. What is best for the child can vary from family to family and can be affected by what is usual for the family. What is best for the children during these holidays and lockdown remains the focus of the Courts and should be the focus of every separated parent. Every Family Court Judge who has faced making a decision about parenting has commented about how the pandemic represents extraordinary times. It is an event that is having a profound impact on children, even children who are not in the midst of parenting conflict. Justice McGee noted that even young children will carry the residual emotions into adulthood, at which time those children will reflect back on whether their parents eased their fear and disruption, or whether their parents were focused on their own needs. How parents act during this difficult time not only sets an example for their children, but can affect their children’s development. It has never been more important to put children’s needs first and do whatever is necessary to avoid conflict – especially during the holidays. The Impact of the Pandemic Family Court Judges have also made it clear that it is essential for children to have relationships with both parents during the pandemic. Judges have repeatedly quoted Justice Pazaratz’s decision early in the pandemic in which his Honour said “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.” Judges have specifically held that parents are expected to find ways for children to move between homes and spend time with both parents in a safe way. Only actual EVIDENCE, not speculation, that a parent is putting children at actual risk of harm will cause a judge to restrict parenting. As public health officials are saying everyone must limit contact with other people, it seems like it might be in the children’s best interest to stay in one spot and have contact with as few people as possible. Obviously, it would not be in the children’s best interest to engage in any activity that could put them at risk of infection. That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis. However, the current view of parenting professionals and judges is that having contact with both parents is important to a child’s sense of well-being and healthy development. This means that seeing both parents is also in the child’s best interest. Children suffer when deprived of contact with their one of their parents. They suffer even more when there is conflict between their parents over things like the schedule. So, disturbing the current arrangements without your ex’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road. To summarize, the decision that parents have to make is: is it in the children’s best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children’s best interest to spend time with both parents even if that means they will come into contact with other people? Again, a lot depends on the new specifics of the situation. If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all. What Judges Think is Fair During the Holidays Specifically with respect to the holidays, there are an abundance of decisions from Family Court Judges about what is fair. The following are what most Family Court judges expect: First, children should rotate where they wake up on Christmas morning or with whom they spend special events. Christmas is often the most problematic, but this can apply to any holiday or special event that is of particular importance to the family. Children should get the opportunity to spend this time with each parent. But keep in mind that for really young children, the fight may not be worth it. They may not know what day it is, so it may be possible to create a special time on any day. Second, where possible, traditions should continue for the children. This may conflict with the first point. But that is usually rather an opportunity to resolve the conflict than to create it. If for example, one side of the family has traditionally celebrated Christmas on Christmas Eve, and the other side on Christmas Day, it can be possible for the children to attend both family celebrations every year rather than miss one. Dinner on Christmas Day is not a prize to be won. Especially if it means ruining your family’s traditional Christmas Eve celebration. Be sensible and practical about how the children can maximize their celebrations. Third, holiday time is usually shared equally. As with the first point, the children are getting a good opportunity to experience the holidays with each parent and their families. There are some obvious exceptions to this, such as when such an arrangement is not safe for the children or where one parent has to work and cannot take advantage of the extra time with their children. Again, this division of time has to be what is best for the children. Fourth, for Christmas, parents often share the time from Christmas Eve to Boxing Day equally and then share the rest of the school break equally. For this special period, it makes sense for the special day to be divided and it can make no sense for one parent to get the entire week around Christmas and the other parent being shut out of Christmas entirely. Fifth, travel with the children is okay during the holidays as long as it does not interfere with the other parent’s holiday. There are steps to be taken when the other parent refuses to let you travel without good reason. Sixth, trying to give bigger or better presents than the other parents teaches the children to be manipulative. The children will play one parent against the other for the better gift when they know that their parent will fall for it. Seventh, just because you are angry or emotional about the holidays after your separation does not mean your children are feeling the same way. Although it can be hard, parents should try to make holidays a happy time for their children. The separation was not the child’s fault, so they have no reason to feel angry or guilty. Trashing the other parent around the holiday table or at any other time the children are present is never okay. Family court judges say that is bad parenting and even a reason to change custody or the parenting schedule. During the pandemic, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials. Or, when a parent insists on engaging in other risky behavior at this unusual time. Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account. If the arrangements do take that type of behavior into account, then no change may be necessary. However, if a parent is insisting on engaging with the children in activities that are clearly not in the children’s best interest in light of the advice and information from our public health officials, then changes may be necessary. The Ontario Courts have supported the directions from Public Health Officials. If a parent is going to disregard those directions, thereby putting a child at risk, the Family Court will intervene. But what most kids of separated parents want during the holidays is to be free from experiencing their parents fighting. Parents must put the children first, realizing that children need both parents and that COVID19 means that everyone has to be careful about making that happen. Taking the High Route Nothing ruins holidays for children like fights between their parents. It is one of the most psychologically harmful things parents can do to their children. As unfair as the other parent may be to you over organizing the holiday, exposing your children to conflicts over or about the holidays is more unfair to the children. If you cannot get matters sorted out before the holidays in or out of family courts, then it is much better to take the high route and save your children from the fight. Then take this to the judge or an arbitrator to fix it for the next holidays. The judge will appreciate that you put your child’s well-being ahead of your own and they will be displeased with any parent that uses their children as pawns over the holidays. Taking the high route can only lead to things working out better for you and your children in the long run. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawDecember 24, 2020July 29, 2021
New Extensions To Canada’s Working Holiday Permits DSF’s immigration law group is hopeful about a 2021 that will see increased immigration to Canada by skilled young workers to complement our labour force and fill necessary labour shortages. Canadian immigration strategies regarding the Express Entry process for permanent residence announced this fall aim to do just that. See our interview with Canada’s Minister of Immigration, Refugees, and Citizenship for more details about that. And even further measures were recently announced with respect to temporary work permits. On December 11, 2020, Canada’s immigration minister and Italy’s Minister of Foreign Affairs signed a new bilateral youth mobility agreement between Canada and Italy. This will see an expansion to existing work-and-travel opportunities between Canadians and Italians between the ages of 18 and 35. Click here – http://bit.ly/3mI78PN The International Experience Canada program allows citizens aged 18-35 of a number of countries to work in Canada under agreements that allow reciprocal opportunities for Canadians. Available work permit categories and lengths of time allowed per category in Canada depend on where the person is from. A full list can be seen here – http://bit.ly/38zrZzM Since 2006, Canada has had such agreements with Italy. The current agreement with Italy has allowed Italians to come to Canada for up to 6 months on Working Holiday work permits and to extend their stay for up to 6 months further as a visitor. The Working Holiday permit is an open work permit that allows the temporary foreign worker to work in Canada for any employer. Under the new bilateral agreement, expected to be ratified in 2021, the options available to Italians have increased to allow up to 12 month long initial permits with the possibility of extending for a further 12. This can provide crucial Canadian work experience to Italians considering applying for permanent residence down the road as such experience can provide points in Canada’s Express Entry process for permanent residence. The agreement also allows Italians to participate in the Young Professionals category, a closed work permit category that provides for employer specific work permits in professional jobs. This participation can prove further useful for those seeking eventual permanent residence as employer specific job offers may provide even further points in Canada’s Express Entry process for permanent residence. While the COVID-19 pandemic has created some roadblocks this year for IEC participants to come to Canada to commence work, the new bilateral agreement hints at a more hopeful and expansive 2021 for Italians seeking work and travel options to Canada. For more information contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, ImmigrationDecember 23, 2020December 23, 2020
Cannabis And Cars – Highs And Lows Of Defending A Driver That Consumed Cannabis In Tort Litigation Like alcohol-impaired driving, drug-impaired driving is a criminal offence. Cannabis-impaired driving can result in injury or death for the driver, passengers or others on the road including pedestrians and other drivers. Cannabis: impairs judgment impairs the ability to react increases the chances of being in a crash[i]. The combination of alcohol and cannabis can further exacerbate the impairment. In 2018, the Criminal Code of Canada was changed to allow possession of marijuana for recreational use but Bill C-46 created new criminal offences for driving while impaired by tetrahydrocannabinol (THC), the active ingredient in marijuana. These new offences are based on the level of THC in a person’s blood within two hours of driving. Alcohol The prohibited blood-alcohol concentration (BAC) is 80 milligrams (mg) or more of alcohol per 100 millilitres (ml) of blood. Cannabis (THC) There are two prohibited levels for THC, the primary psychoactive component of cannabis: it is a less serious offence to have between 2 nanograms (ng) and 5 ng of THC per ml of blood. It is a more serious offence to have 5 ng of THC or more per ml of blood. Combination of alcohol and cannabis The prohibited levels of alcohol and cannabis, when found in combination, is 50mg or more of alcohol per 100ml of blood and 2.5 ng or more of THC per ml of blood. Other drugs Having any detectable amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited. The prohibited level for GHB is 5mg or more per litre of blood since the body can naturally produce low levels of this drug. A challenge however, is that THC can sometimes be detected in a person’s blood even 30 days after they consumed cannabis. Impaired Driving Has Tort Implications While charges are not admissible evidence in tort litigation, criminal convictions are admissible evidence of wrongdoing. Accordingly, any criminal conviction is problematic to the defendant driver. Where there were no convictions, then the usual rules of negligence will dictate exposure. An area to consider when mounting a defence is to determine in what format was the cannabis consumed? For example, was it inhaled? Was it in the form of a baked good? A gummy? Was any alcohol consumed? What prescription medication was the driver taking? Different formats have different effects on different timeframes. When was it was consumed? During the car ride? 2 hours before the car ride? The night before? THC, the psychoactive ingredient, takes time to leave the system and its metabolized carboxyTHC takes even longer – some say it can even take up to a month. Accordingly, any test that is positive for carboxyTHC is arguably only evidence that cannabis had been consumed and not that the driver was impaired by cannabis. Assessing the impact of cannabis is far more complicated than assessing the impact of alcohol. While, alcohol levels are correlated to impairment, the same is not true of cannabis. Another area to consider once cannabis consumption has been raised is to determine the level of the driver’s impairment. What was the driver’s condition? Were the driver’s eyes bloodshot? Glassy? Pupils dilated? Did the driver have balance issues? Slurred speech? Confusion? Inappropriate responses? Delayed responses? Was the driver tired, sleepy? A final area to consider is whether the accident was caused by marijuana impairment or by some other factor. For example, was there poor lighting, was there black ice, did another driver do something that triggered the accident, did an animal jump out of the road unexpectedly etcetera. It may be there were other causes to the accident that had nothing to do with impairment. In order to defend a driver about the effect of the cannabis consumed, witness statements from everyone that had contact with the driver at the scene will be useful to determine whether or not the driver exhibited any evidence of impairment. A toxicologist expert will also be necessary to determine the levels of cannabis and the anticipated effects or lack thereof in the particular circumstances. An accident reconstruction may be considered as well. This area is developing. There have been criminal trials dealing with impairment, there have been labour decisions, human rights decisions and union arbitrations that are starting to consider and challenge the consumption versus impairment issues. I expect court decisions in the tort context will follow but the litigation process is longer and has been slowed down due to COVID. [i] Cannabis impairment – Canada.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, COVID-19, Insurance DefenceDecember 17, 2020March 13, 2024
Failure To Close An Agreement Of Purchase And Sale In The Context Of COVID-19 The COVID-19 pandemic has lead to noticeable changes in the real estate market in the GTA as well as to a general recession, according to Statistics Canada. While detached houses and living space in the suburbs in general increased in value, smaller living spaces such as condominiums are in very low demand. Purchasers who entered into an Agreement of Purchase and Sale (APS) may no longer be able to secure financing for the property. This may be due to the recession and/or the purchaser’s loss of employment between signing the APS and the closing date. The consequences of a failure to close on an APS were previously addressed in detail here. Consequences of failure to close In brief, the consequences for the purchaser who fails to close are as follows: the purchaser will likely forfeit their deposit; the purchaser may also be liable for the difference in value between the purchase price agreed upon in the APS and the re-sale price the vendor can obtain, less the amount of the forfeited deposit; the purchaser furthermore can bear liability for the vendor’s costs until the re-sale, for example, gas, hydro, taxes, etc. as well as interest and other consequential losses the vendor suffered if the vendor was relying on the money from the purchase to buy another property. Legal considerations A change in the market conditions or loss of employment does not constitute a legally valid reason not to fulfill the obligations arising from the APS. Generally, there is no frustration of contract or force majeure at work. Frustration A contract is frustrated when a supervening event has occurred after entering into the contract, without the fault of either party, which renders the performance of the contract substantially different than the parties had bargained for (Bang v. Sebastian, 2018 ONSC 6226). The event must have been unforeseeable. The courts have held that parties to an APS know that market prices can go up and down. While the magnitude of the downturn may have been unexpected, that does not render it unforeseen. It also does not alter completely the nature of the APS (Paradise Homes North West Inc. v. Sidhu, 2019 ONSC 1600). Force Majeure In Paradise, the purchaser also argued the defence of force majeure. The court did not assess the merits of this defence. In fact, this defence is rarely litigated. One reason is that there is no common law doctrine of force majeure. This defence can only be brought forward if the contract explicitly provides for it. Such a clause would often provide that the parties are relieved from their contractual obligations when an unexpected, external event has occurred that prevents the parties from performing their obligations. Recent Case Law The recent Ontario case law concerning breach of an APS in the COVID-19 context does not address the defence of force majeure. Since there is no common law doctrine of force majeure and given its relatively low success rate in courts, frustration is predominatly the defence of choice. However, frustration, has not yet been found to relieve a party from the obligations of an APS due to the ongoing pandemic. Two cases before the Superior Court of Justice are illustrative. In FSC (annex) Limited Partnership v. Adi 64 Prince Arthur L.P., 2020 ONSC 5055, a commercial real estate case concerning a condominium project in Toronto, the respondent argued that difficulties obtaining financing during the COVID-19 crisis frustrated the shotgun provision under which the respondent had previously elected to purchase the applicant’s interest in the project. This argument failed. While this case is not a classic APS case, it still clearly demonstrates that the court is not easily persuaded that a recession justifies a finding of frustration. The court said: “If decreased liquidity was tantamount to frustration, it would mean that a large number of contracts for which parties required financing would be frustrated in every recession.” The second case relevant in this context is Burrell v. Burrell, 2020 ONSC 3269. In this case, one of the selling spouses unilaterally decided to refuse to sign the closing documents for the former matrimonial home in the course of the divorce, calling upon the pandemic and the health risks the moving arrangements would involve. The court found that the spouse’s argument would not render litigation successful with the purchasers of the house, implying that the APS would not be frustrated due to the pandemic’s health risks. Therefore, the other spouse was permitted to sign the documents for both spouses, so that the obligations under the APS would be honoured. Lessons to be learned The ideal course of action is to include a clause in the APS that makes the APS contingent on the purchaser’s ability to obtain the necessary financing to close the transaction. In the reality of a competitive real estate market, this option will not always be available to the purchaser. A second option, subject to the same flaw, is to include a force majeure clause in the APS. This needs to be individually negotiated because most real estate agents use the Ontario Real Estate Association’s (OREA) standard APS form for residential transactions, which does not include a force majeure clause. Furthermore, the effects of COVID-19 are raising novel issues that have not yet been fully canvassed by courts, and whether such a clause would be successful in allowing a purchaser to pull out of an APS due to financing issues or other issues relating to COVID-19 would remain to be determined. As mentioned above, the precise language will be important when the buyer has to convince the court that performance was truly impossible and that COVID-19’s impact on the real estate market was unforeseeable. If you require legal advice on a commercial litigation matter, such as the above, feel free to reach out to DSF lawyer Stephanie Turnham under 289-638-3182 or stephanie.turnham@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Commercial Litigation, COVID-19November 27, 2020December 17, 2020
Immediate Family Members of Canadians – Entering Canada Since the onset of the pandemic, the rules about who can enter Canada have been confusing and hard to keep up with at times. A particularly hard hit group has been “immediate family members” of Canadians. The temporary travel ban enacted under the Quarantine Act has consistently defined “immediate family members” as the spouse or common-law spouse of a Canadian; a dependent child of a Canadian; the parent or step-parent of a Canadian or their spouse or common-law partner; or the guardian or tutor of a Canadian. However, it has not always been clear who can enter and when, nor have the changes thus far to the rules been sufficient for all family members or loved ones of Canadians. Initially, the COVID-19 travel ban did not apply to “immediate family members” of Canadians so long as the purpose for their entry was not discretionary or optional. In the first few months of the pandemic, this meant airline personnel and border services officers were assessing whether a person’s stated purpose was discretionary. One person coming to visit their Canadian spouse for a few weeks may have been turned away while another in the exact same circumstances may have been let through depending on which officer they got. In June 2020, the travel restrictions were revised so that immediate family members of Canadians could enter regardless of their purpose so long as they could show they were coming for a period of at least 15 days to be with their Canadian family members. Inherently, this seemed to accept that anyone coming in for a period for at least fifteen days was not coming in for an “optional” or “discretionary purpose” and took some of the pressure off of travellers who no longer needed to convince an officer their travel was essential. Those seeking to come for less than 15 days have continued to be exempt from the travel ban but remain subject to the “non-discretionary”/”non-optional” rule. The June changes regarding immediate family members have remained in place up to now. Last week, the federal government announced that further expansion to the exception would be released on October 8, 2020. The proposed changes will allow grandparents, siblings, and adult children of Canadians (not currently exempt) to enter in certain circumstances. Other foreign nationals seeking entry for compassionate reasons such as critical illness or death are also expected to be included in the changes. Stay tuned for further updates. For more information on immigration law, please contact Maya Krishnaratne, Immigration Lawyer at Devry Smith Frank LLP, 416-446-5841, Maya.krishnaratne@devrylaw.ca This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, ImmigrationOctober 6, 2020November 30, 2020
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.”
Back To School Amid Covid-19? The Ontario Superior Court of Justice (ONSC) has recently, and in numerous instances, been called upon to decide the question as to whether children should be sent back to school amid the current Covid-19 pandemic. According to the Guide to reopening Ontario’s schools issued by the Ministry of Education, parents can choose between online schooling from home or in-person schooling for the next semester. However, when separated or divorced parents cannot agree on this, the courts are, often perhaps unnecessarily, asked to get involved. This Blog reports on four Endorsements released on this issue by the ONSC over the course of the last few weeks and comments on alternative strategies to resolve the back to school question in the best interest of the child and everyone involved. Home-schooling may only be ordered when a medical condition or the safety of a child’s inner circle requires it The two cases Chase v Chase and Wilson v Wilson come to different outcomes that can nevertheless be reconciled. In Chase, the ONSC ordered for the child to be registered for in-person schooling, whereas the court came to the opposite conclusion in Wilson. Factually, the two cases differ, because only in Wilson did the court find that there were underlying health concerns, namely asthma, that would put one of the Wilson children at disproportionate risk if they had to return to school in September. This important health factor is was weighted by the court and balanced against the child’s mental health, psychological, academic and social interests, as well as many parents’ need for childcare which usually speak in favour of attending school in-person. The ONSC’s approach to expert evidence on the safety of in-person schooling Notably, the ONSC in Chase pays deference to the government’s decision to reopen schools. The court holds that the government is better placed to decide upon the reopening than the courts are because the government is benefitting from extensive expert evidence and is conducting consultations with relevant stakeholders on this matter. As a consequence, the ONSC rejects to consider a recently released report by the Toronto Hospital for Sick Children that the parties, in this case, made reference to in the proceeding. Stating that there is evidence on both sides, the ONSC declines to be the adjudicator between differing expert opinions, leaving it to the government to evaluate the conflicting evidence. The court does, however, look to the particular facts of each case to determine whether there are individual risk factors that weigh in favour of making an exception from the general in-person attendance requirement set out in the respective provincial Education Act, i.e. in s. 21(1) of the Ontario Education Act, R.S.O. 1990, c. E.2 In its finding in Chase, the ONSC draws upon non-binding, yet persuasive arguments from two Quebec Superior Court decisions delivered on May 7, 2020: Droit de la famille – 20641, 2020 QCCS 1462 (CanLII) and Droit de la famille – 20682, 2020 QCCS 1547 (CanLII). The two decisions, too, come to different conclusions due to the fact that in only one of the two cases a family member suffers from a medical condition that puts the family at disproportionate risk, outweighing the child’s interest to return back to school. The approach by the ONSC taken in Chase following the Quebec decisions falls neatly in line with the principled division of powers between the executive branch and the judiciary. It is the responsibility of the government to establish general policies with broad application, whereas the judiciary has to focus on individual cases in order to ensure that the government’s policies in their application to actual people do not lead to unintended hardships. In Wilson, however, the ONSC takes a slightly different approach. Here, the court in fact considers the report of the Toronto Hospital for Sick Children, which recommends a return to in-person schooling. The court determines that it is unclear whether the in-person plan actually conforms with expert reports and that it appears to lack some of the recommended safeguards. The court concludes that it did not have any evidence to the contrary that returning to school was safe. To some degree, the ONSC in this case did evaluate the evidence and made a finding on its reliability in order to justify a decision that diverges from the recommendation of the Sick Children report. For this reason, it remains somewhat unclear whether reliance on expert reports will help a parent’s case to achieve the desired order. Conclusion from current case law In a third decision, Manabat v. Smith decided on September 2nd and involving one of DSF’s family lawyers, Katelyn Bell, the court affirmed a test previously set out in another very recent case, Zinati v. Spence, 2020 ONSC 5231. This test summarizes the factors determined in the (sparse) case law on the question of whether it is in the child’s best interest to be schooled at home or in person during the current pandemic: The risk of exposure to COVID-19 that the child will face if she or he is in school or not in school; Whether the child or a member of their family is at increased risk from COVID- 19 as a result of health conditions or other risk factors; The risk a child faces to their mental health, social development, academic development or psychological well being from learning online; Any proposed or planned measure to alleviate any of the risks noted above; The child’s wishes if they can be reasonably ascertained; and The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent’s work or caregiving responsibilities or other demands. Overall, the outcome of every case will really depend on the children and the family involved. Alternatives to an Application to Court A further comment made by the ONSC in Wilson deserves mentioning. The Honorable Justice Himel points out that bringing the issue of whether the child should return to school or not before a judge is not the most recommendable course of action. For one, the decision is likely going to be made on the written evidentiary record due to a lack of time and resources and a large number of emergency applications that need to be decided upon before school starts. This means that a judge who has never met the parties, let alone the child, will decide on what is in the best interest of the child and the family. A course of action that would empower the parties to make the decision and yet provide the benefit of professional advice and opinion is court-based mediation. This service is readily available and often free or subsidized. It has the further benefit of mitigating the tremendous burden on the family justice system that has arisen from the Covid-19 pandemic. If you have more questions about your education law matter for both private or public schools contact John Schuman at 416-446-5080 and john.schuman@devrylaw.ca or Katelyn Bell at 416-446-5837 and katelyn.bell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Education Law, Family LawSeptember 17, 2020January 12, 2021
Temporary Layoffs During COVID-19 – “COVID-19 period” extended until January 2, 2021 On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. The regulation applies retroactively from March 1, 2020, and initially was set to expire on September 4, 2020, six (6) weeks after the state of emergency ended. This period of time is referred to in the Regulation as the “COVID-19 period”. Our initial blog, which explains the impact of the Regulation on employer and employee rights, can be found here. On September 3, 2020, the government of Ontario announced that the COVID-19 period would be extended until January 2, 2021. Impact of the Regulation and the Extension of the COVID-19 Period As a result of the Regulation and the government’s latest announcement, non-unionized employees who have been temporarily laid off between March 1, 2020, and January 2, 2021, for reasons related to COVID-19 would be deemed to be on Infectious Disease Emergency Leave. Under the ESA, an employee who has been laid off for more than 13 weeks in any period of 20 consecutive weeks (or for at least 35 weeks in any period of 52 weeks, if certain other conditions are met) will be deemed to have been dismissed from their employment. This constructive dismissal would then entitle the employee to statutory termination pay, as well as severance pay (if certain other criteria are met). The extension of the COVID-19 period to January 2, 2021, means that there will be no deemed terminations arising from temporary layoffs until after January 2, 2021, provided that the reason for the layoff was related to COVID-19. As noted by the government of Ontario, the Regulation can relieve employers from substantial payments to their employees, which can make a difference in times where the business is already struggling to survive the economic effects of the pandemic. Does the Regulation Alter the Common Law related to Temporary Layoffs and Constructive Dismissal? As set out above, an employer has a right to temporarily lay off employees under the ESA. However, it is well-established law that an employer does not have a common law right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. This would result in a constructive dismissal at common law. The common-law prohibition of temporary layoffs in Ontario can be altered if there is an express term in an employment contract that permits an employer to temporarily layoff employees in accordance with the ESA. In order for the common law to be altered by a statute, there would need to be express language in the statute to that effect, which is not the case here. In fact, the ESA expressly states that “no civil remedy of an employee against his or her employer is affected by this Act” and the Regulation does not contain any language which would modify this section of the ESA. In the event that the common law provides a greater right or benefit to an employee than their ESA entitlements, the common law will prevail. However, an employer can limit an employee’s entitlements by contract, as long as the contract ensures that the employee will not receive less than their minimum ESA entitlements. COVID-19 has resulted in unique and unprecedented circumstances for both employers and employees and how the courts will interpret and apply Regulation 228/20 (and the most recent amendment to the COVID-19 period) remains to be seen. The courts may still find that employees have been constructively dismissed at common law, but may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours or wages will also be relevant. If the common law remains unaltered, many temporary layoffs due to COVID-19 would be unlawful and may result in the employee’s entitlement to a common law notice period and significant severance payouts for employers. Key Takeaway for Employees: Employees who have been temporarily laid off during the COVID-19 period and were waiting until after September 4, 2020, to claim statutory termination pay and severance pay from their employer arising from a deemed termination of their employment will now have to wait until after January 2, 2021. However, assuming that there was no lay-off provision in their employment contract, employees in this situation should consider taking the position that the lay-off was in contravention of the common law, their employment was constructively dismissed, and that they are therefore entitled to a common law notice period. Key Takeaway for Employers: Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA until after January 2, 2021, with respect to employees who have been temporarily laid off due to COVID-19, and may therefore wish to consider extending temporary layoffs until January 2, 2021. However, the Regulation does not bar employees from pursuing an action in common law and it is unclear at this stage how courts will interpret and apply this Regulation. If you have more questions about how this new Regulation will affect you as either an employer or employee, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawSeptember 15, 2020September 29, 2020