What can I get ticketed for during the COVID-19 State of Emergency in Ontario? This blog is co-written by our former articling student, Janet Son. There is a growing list of Orders-in-Council being made under the Emergency Management and Civil Protection Act (“EMCPA”), which provides the Ontario government with sweeping powers to put measures in place to contain the COVID-19 pandemic. However, there is a growing concern about excessive ticketing and fining by police and by-law officers. Many seemingly benign activities such as doing a chin up at a soccer net in an empty field, a family rollerblading together or walking your dog through the park have resulted in hefty fines for individuals. During a time of financial strain, these tickets are ranging from $750 to a summons, which upon conviction could result in a $100,000 fine for individuals and $10 million for businesses. Since April 24, 2020 the Toronto Police has issued 185 tickets and 16 summons. A regulation under the EMCPA ordered the closure of outdoor recreational amenities including all playgrounds, play structures, equipment, sports facilities, multi-use fields, off-leash dog areas, portions of park and recreational areas containing fitness equipment, allotment gardens, community gardens, picnic sites, benches and shelters in park and recreational areas. This list also includes outdoor recreational amenities whether or not they are publicly or privately owned. However, individuals are allowed to walk through or use portions of the park and recreational areas that are otherwise not closed or do not contain an outdoor recreational amenity. These over-broad prohibitions have led to individuals worrying about receiving a ticket for sitting on a park bench for too long. Toronto Police has clarified that enforcement officers should be considerate of those who need park benches as “temporary respite” or for those experiencing homelessness. Furthermore, another regulation under the EMCPA requires an individual to identify themselves to police if they have reasonable and probable grounds to believe that an individual has committed an offence under the EMCPA. Toronto Police stated that they are working with the City of Toronto on education and enforcement initiatives that would support public health efforts. However, a constitutional challenge may be mounted about the legality of this type of ticketing. Though we are living through a public health crisis, police measures still need to be proportionate and not arbitrary. If you have been ticketed for violating a regulation under the EMCPA contact criminal lawyer David Schell at david.schell@devrylaw.ca or at 416-446-5096 to learn more about your rights. “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, Criminal LawApril 30, 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 Fauzan SiddiquiBlog, COVID-19, Family LawApril 29, 2020September 30, 2020
Temporary Foreign Workers can enter Canada amidst COVID-19 Travel Restrictions This blog is co-written by our former articling student, Janet Son. The Federal Government announced changes to the travel restrictions as they apply to Temporary Foreign Workers (“TFW”) with some major caveats. TFW’s who are coming to Canada for an “essential purpose” are exempt from travel restrictions if they do not present symptoms. Essential services include: Necessary medical deliveries of cells, blood, tissues, organs and other similar life-saving human body parts Trade and transportation sectors that deliver goods and people such as truck drivers, crew on planes, trains and vessels Workers in the healthcare or critical infrastructure sector that regularly cross the border to work Those that have to cross the border to provide or receive essential services including emergency responders However, all other TFW’s on a work visa not considered “essential” will be subject to certain restrictions. If flying by air, TFW’s will be required to pass a health check by the airlines before they are allowed to board the plane. Anyone with symptoms of COVID-19 will not be allowed to board the flight. According to Section 58 of the Quarantine Act, Emergency Order PC number 2020-0175, TFW’s that do not fall under the exemptions are required to self-isolate for 14 days upon their arrival to Canada whether or not they have symptoms. If they have symptoms upon arrival, depending on the severity of their condition, they may be placed in quarantine at the port of entry or sent to the hospital. Once recovered they will be assessed by the hospital and deemed safe to continue to their final destination within Canada. TWF’s can face hefty penalties for failing to report symptoms or to self-isolate for the mandatory 14 days, including fines of up to $750,000. Employers cannot allow their TFW’s to begin work until the 14-day self-isolation period is complete, even if it is at the request of the worker. This 14-day period must also be paid time. The Federal Government announced $50 million dollars to assist farmers and fish processers to offset the cost of 14 days of pay during the mandatory self-isolation period. These industries heavily rely on TFW’s for seasonal work. Employers are eligible for $1500 per TFW to help cover the cost. Furthermore, if a TFW becomes ill while in Canada, they should receive health coverage equivalent to residents of Canada. And for workers in the low-wage and primary agriculture streams including the Seasonal Agricultural Worker Program, their employer is responsible for ensuring health coverage until they are eligible for the provincial plan. The employer must also immediately notify their local public health authority and ensure proper conditions for self-isolation for the TFW. Finally, TFW’s may be eligible for Employment Insurance or the Canada Emergency Response Benefit as long as they meet the eligibility requirements. TFW’s may also be eligible for paid or unpaid sick leave based on their specific employment contract and applicable employment legislation. These policies aim to strike the balance between the urgent need of Canada’s agriculture and fishing industry for TFW’s while attempting to ensure the safety of the TFW’s and the general public. If you have more questions about the Temporary Foreign Worker programs related to COVID-19, contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841 or employment lawyer Marty Rabinovitch at marty.rabinovitch@devrylaw.ca or 416-446-5826. By Fauzan SiddiquiBlog, COVID-19, ImmigrationApril 28, 2020September 30, 2020
How is COVID-19 affecting child and spousal support in Ontario? The coronavirus pandemic has brought far-reaching economic shock waves across the country. Over one million jobs have been lost in Canada due to COVID-19 in the month of March alone. As this crisis continues and more jobs and businesses evaporate, support payors and support recipients are going to feel the financial strain. If you are a support payor pursuant to a court order, child and spousal support must still be paid despite the current state of affairs. Each region has its own notices and practice directions regarding support issues. Since April 6, 2020, the Notice to the Profession for the Central East Region which includes Whitby, states that the following matters are eligible for a hearing in writing or virtually before a judge: 14B motions requesting consent Orders on issues such as support – a Support Deduction Information Sheet (“SDIC”) is required to assist in completion of a Support Deduction Order (“SDO”). If one or more than one party is represented by counsel, a draft Order is to be submitted with the SDO. Consent Motions to Change (Form 15D), if a party is represented by legal counsel then the SDIC and SDO are to be filed. Case Conferences upon request by 14B, if granted, are limited to 30 minutes unless permitted otherwise by the triage judge and only 1 or 2 pressing issues can be conferenced which includes financial issues that do not meet the stringent urgency test. Before proceeding with motions to the Court, first determine if you are eligible for any Federal government relief programs such as the CERB or Wage Subsidy Program. Eligibility may allow you to at least continue partial payments. Though, keep in mind that under Section 11 of the COVID-19 Emergency Response Act, CERB payments cannot be garnished by the Family Responsibility Office (“FRO”) at this time. The next step would be to explain your financial situation to the person you are paying support to. Cooperate as much as possible in an attempt to agree to a temporary reduction of support and/or to pay out any arrears with a modified payment plan if and when you are able to regain employment. Once an agreement is made, request a consent motion for an Order to reflect the temporary agreement regarding support arrangements during this time. The Family Responsibility Office (“FRO”) has confirmed that they will not be sending any new notices of driver’s licence suspensions and are in the process of cancelling notices that were previously sent in order to reduce the number of urgent refraining motions. This means that motions to vary or stop support payments will unlikely be considered “urgent” enough to be heard by the court at this time unless the payor is in “dire financial circumstances”. In Theis v. Theis, 2020 ONSC 2001, the support payor mother brought an urgent motion requesting that her share of the sale proceeds of the matrimonial home be released. She was a small business owner who was forced to shut down due to provincial restrictions and her revenue had dropped to zero. Unfortunately, she failed to provide evidence of “dire financial circumstances” warranting an urgent motion including her: her previous income before the restrictions; her total income now from all sources; her personal and business expenses; the extent of her resources more generally; an updated sworn financial statement; and the results of any applications for federal relief funding and timelines. As a result, due to the dearth of evidence in her motion materials, no finding of dire financial circumstances could be found and her motion was dismissed. The key take-away is try to negotiate a temporary settlement and bring a motion on consent or as a last resort bring an urgent motion if you have enough evidence to demonstrate dire financial circumstances. Contact family lawyer Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca if you have more questions about support obligations during the coronavirus/COVID-19pandemic. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 27, 2020September 30, 2020
Bringing Motions During COVID-19 in Family Law 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 limbo. It is important to understand which family law motions may still be brought before the Superior Courts. This post looks at this issue within the Toronto, Central East and Central West regions. Toronto In Toronto, the Superior Courts will only hear motions on specific grounds. The first ground is that the motion must be urgent. This includes: Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); Urgent issues that must be determined relating to the well-being of a child including essential medical decisions, issues relating to the wrongful removal or retention of a child, or failure to comply with existing court orders and parenting plans; Issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order; Urgent child protection motions involving the Children’s Aid Society. It is important to note that the actual hearing of these motions is likely to take place either virtually or by way of teleconference. Parties can also consider bringing motions by way of 14B. A 14B motion is a motion made in writing. The courts will continue to hear 14B motions that are made on consent of all the parties. Central East – Barrie, Bracebridge, Cobourg, Lindsay, Newmarket, Oshawa, Peterborough Much like Toronto, the Central East Region is only hearing motions on specified grounds. This includes: Urgent motions that meet the threshold for urgency, and ex-parte motions i.e. on matters relating to the safety or well-being of a child. 14B motions in writing, requesting consent Orders on issues such as support, changes to temporary support, parenting issues (primary residence, “access” time), disbursement of funds held in trust, appointment of an OCL, Child Protection matters, and other consent matters. 14B motions requesting a Case Conference if the issues are pressing. Pressing issues that may require a Case Conference include issues of parenting, COVID-19 concerns, financial issues, or Child Protection matters that do not necessarily meet the stringent test of urgency in addition to urgent matters of a similar nature. Consent Motions to Change when both parties are seeking to change a portion or all of a previous order or agreement in place. Again, note that the actual hearing of these motions is likely to take place either virtually or by way of teleconference. Central West – Brampton, Milton, Orangeville, Guelph, Owen-Sound, Walkerton The Central West Region’s hearing of motions during these unprecedented times mimic the hearings offered by Toronto, including again: Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); Urgent issues that must be determined relating to the well-being of a child including essential medical decisions, issues relating to the wrongful removal or retention of a child, or failure to comply with existing court orders and parenting plans; Issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order; Urgent child protection motions involving the Children’s Aid Society. The Superior Courts in Central West will also hear consent motions in writing, made by way of a 14B motion. However, unlike Toronto and Central East, Central West is allowing parties to submit motions if the parties consent that the entire motion can be decided in writing only. This means no oral hearing is provided, and the presiding judge will make their decision predominantly based on the parties’ written material only. Conclusion 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 (289-638-3179 or andreina.minicozzi@devrylaw.ca) to have your rights assessed and protected. Court procedures for filing materials and scheduling a motion have also changed and we have stayed up to date on these new procedures so that your rights continue to be protected during these unprecedented times. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 23, 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 Fauzan SiddiquiBlog, COVID-19, Employment LawApril 20, 2020September 30, 2020
How to Deal With Domestic Violence and Child Abuse During COVID-19 This blog is co-written by our former articling student, Janet Son. This pandemic has brought the surge of another life or death danger: women and children who are forced to self-isolate with their abusive partners. According to the Ontario Association of Interval and Transition Houses (OAITH), a network of 70 shelters across Ontario, they have seen an alarming increase in the number of calls from women who are facing domestic violence; and there are many more who are now unable to safely contact help. The Ontario Superior Court is still hearing urgent family law matters pertaining to the safety of a child or parent such as a obtaining a restraining order, restrictions on contact between parties or exclusive possession of the home. For lawyers, now is the time to get educated on how to spot the red flags of family violence amongst your client base and take appropriate steps. Luke’s Place provides online CPD accredited training called “Effective Lawyering with Clients Leaving Abusive Relationships” designed for Ontario family lawyers. For those who are at risk or have experienced violence in the home, their priority should be to get a safety plan. The Assaulted Women’s Helpline Crisis Line can be reached: Toll-free at 1-866-863-0511 Toll-free TTY: 1-866-863-7868 Text #SAFE (#7233): On Rogers, Fido, Bell, or Telus Mobile Shelter Safe provides a comprehensive list of resources to connect with a local women’s shelter across the country. Family Court and Beyond provides comprehensive information on leaving an abusive spouse including safety planning tips. The Superior Court has begun to release COVID-19 family decisions. In Reitzel v. Reitzel, 2020 ONSC 1977, a father’s motion for parenting time with his children was deemed non-urgent. It had been six months since the parties’ separation and he had only exercised limited parenting time, taking the children to sporting events. The mother opposed the motion alleging that the father was verbally and physically abusive towards her and all their children when they were together and that he continues to harass, stalk, and intimidate them. In the aforementioned case, The Family and Children’s Services of Waterloo Region (“FACS”) interviewed all the children after the separation and provided a letter in support of the mother for the motion, stating that it does not support any unsupervised parenting time with the father. Though Justice Madsen found the letter by FACS to be preliminary untested evidence, it will be considered along with further evidence for a future motion to determine parenting arrangements. Victims of domestic violence should shore up as much evidence as possible to demonstrate the danger they are experiencing. Involvement of Children’s Aid Societies can assist in obtaining this evidence and provide further resources for safety-planning. If you have more questions about domestic violence in your family law situation, contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 20, 2020September 30, 2020
Force Majeure in the COVID-19 era. Can it save your business? In these unprecedented times of COVID-19, business owners are facing unprecedented hardship and economic losses. Contractually, how a party defines the parameters of Force Majeure/Act of God will be crucial to the interpretation. Legal consideration is highly recommended before a decision is made to not perform the terms of the contract. Heavy penalties can be granted for failure to live up to contractual obligations. However, if it is a valid Force Majeure event, your company may not be obligated to live up to the agreed upon contract. Similarly, if the party you contracted did not live up to its obligations you may have recourse depending on the wording of the Force Majeure clause. Similarly a company should consider the insurance implications of a contract. Again, depending on how a company has contracted with its insurer, it may be eligible to receive business interruption benefits during this unprecedented time. This could mean the difference between bankruptcy and the survival of a business in these unchartered waters of COVID-19. FORCE MAJEURE According to the Black Law’s Dictionary Force Majeure is defined as an “event or effect that can neither be anticipated or controlled”. It is also referred to as an “Act of God”.[1] This contractual term will help define a company’s obligations under its contracts and whether a company may be entitled to insurance relief in this difficult time. There is little legislative or case law guidance on obligations for epidemics and potential pandemics. Legal advice should be sought to highlight your risks. The Court places the burden of providing Force Majeure on the party intending to rely upon it to establish that compliance was impossible and not merely inconvenient or more difficult.[2] WHERE TO BEGIN The first step is to look at the contract, whether it is a contract with a customer, supplier, vendor, etcetera. Force Majeure clauses are not mandatory. If it is not included in the contract this would not be a viable defence for cancelling a contract. It may be that the Force Majeure clause will grant more time to fulfill a contractual obligation. It may allow a party to back out of the contractual obligation completely. It may provide relief that is contemplated in the contract. The Courts will look at the specific terms of the specific contracts.[3] Once it is established there is a Force Majeure clause, the next step is to determine what types of situations it contemplates. Is it a broad clause? Does it using wording of a health emergency? Does it use wording of a national emergency? Does it include wording of a pandemic? If the answer is that the contract contemplated a pandemic such as COVID-19, was the failure to complete the contract due to COVID-19? It may be that there were other circumstances such as not having put the necessary infrastructure in place at the outset of the contract, irrespective to the COVID-19 circumstances that would have caused the party to default on the contract. In such cases the Force Majeure clause would not be helpful. ACTIONS The type of action taken will be dictated by the terms of the contract. For example, in the case where the contractual terms save the party from its obligations if a legislative authority cancels an event rather than the company itself, the company may wish to work cooperatively with the local authority to have it cancel an event instead of the company itself. This could make the difference between contractual penalties versus a valid cancellation. DUTY TO MITIGATE Does the contract require you to mitigate your damages? Were you cancelled on? Did you cancel? Chances are the contract has a duty to mitigate provision, in order to mitigate the damages caused by the cancellation. This will lead to considerations of what steps were taken instead. Could services be provided but at extra costs? Could some money be recouped for example selling inventory in a different way or for a loss? THE COURTS HAVE CONSIDERED FORCE MAJEURE CLAUSES The Supreme Court of Canada has considered the issue of Force Majeure in a contract in the case Atlantic PaperStock Ltd. v. St. Anne-Nackawic Pulp & Paper Co...[4] The Court considered a clause that contained the words “non-availability of markets” and found it generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The Court held that in considering such clauses, the common thread is that of the unexpected, something beyond reasonable human foresight and skill. If markets were unavailable, did they become so because of something unexpected happening? Was the change so radical as to strike at the root of the contract? Could the party, through the exercise of reasonable skill, have found markets in which to trade? In this case, the contract contemplated the following to be frustrating events: an act of God, the Queen’s or public enemies, war, the authority of the law, labour unrest or strikes, the destruction of or damage to production facilities.[5] In that case, it was not sufficient for a party to cancel a contract because it could not complete the work profitably. Similarly, a closed or declining market is not sufficient to trigger the clause.[6] The Ontario Court has found that the Force Majeure clause can be triggered due to unforeseen humidity and a heatwave.[7] The province wide black out in 2003 was also considered a Force Majeure by the Court.[8] The Ontario Court has found, however that the Force Majeure clause was not triggered where there was a dramatic drop in real estate values.[9] In this instance, a party was still required to complete the unconditional agreement of purchase and sale. Similarly the volatility of financing rates is not considered a Force Majeure.[10] Similarly a failure of a courier company to deliver a package on time was not considered a Force Majeure.[11] The Courts do not appear to regard changes in economic or market circumstances itself as a Force Majeure. The Court does not analyze profitability to determine whether an event is a Force Majeure. The Courts require a higher threshold to be met of something unforeseeable in order to trigger the Force Majeure clause. Before relying on a Force Majeure clause, get legal advice to help determine if it is likely to be enforceable. IS THERE INSURANCE AVAILABLE TO HELP WITH LOSSES? Once contractual obligations are considered, you should determine whether your insurance coverage can help compensate for losses. Many businesses carry business interruption coverage. Again, like with contracts between parties, the specific terms of the insurance policy will specify the coverages and exclusions. You should obtain legal advice to help determine whether you have coverage available to you. Courts tend to interpret insurance contracts more broadly so you may be found to have coverage under your insurance policy for COVID-19 losses. CONCLUSION In this COVID-19 era, many businesses face economic difficulties. Looking to your contracts will help the business determine if it has any recourse in its contracts for additional time, or the ability to cancel part or all of a contract. The wording of the contracts will be important. Legal advice is necessary to help guide that decision. Getting it wrong can have expensive consequences so be aware of the risks. Also at this time, consider whether you have any insurance coverage that could be triggered by COVID-19. [1] Black’s Law Dictionary, 11th ed, sub verbo “force majeure”. [2] Evan Bolla, “Force Majeure and Insurance Considerations for COVID-19 Cancellations” (18 March 2020), Risk Management Magazine, online: <http://www.rmmagazine.com/2020/03/18/force-majeure-and-insurance-considerations-for-covid-19-cancellations/>. [3] Ibid. [4] Atlantic PaperStock Ltd. v. St. Anne-Nackawic Pulp & Paper Co., [1976] 1 SCR 580. [5] Ibid at para 4. [6] Ibid at para 6. [7] CAW-Canada, Local 252 v. Maksteel, 2012 CarswellOnt 6790 at para 26 (Ont Arb). [8] Partnership for Public Lands v. Ontario (Director, Ministry of the Environment), 2003 CarswellOnt 5130 at para 12 (Ont Environmental Review Trib). [9] Holst v. Singh, 2018 ONSC 4220 at para 6. [10] Tom Jones & Sons Ltd. v. R., 1981 CarswellOnt 680 at para 15 (Ont HC). [11] Iannuzzi v. Ontario (Ministry of the Environment), 2009 CarswellOnt 7555 at para 32 (Ont Environmental Review Trib), citing Miller v. Ontario (Director, Ministry of the Environment) (2008), 36 CELR (3d) 305 (Ont Environmental Review Trib). “Our articles are 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-19April 17, 2020May 22, 2021
COVID-19 – Employer and Employee Frequently Asked Questions Employers Can my company screen its employees for COVID-19 prior to permitting them to enter the workplace, such as by asking them if they have symptoms, or by subjecting them to a mandatory temperature check? An employer is required to maintain a safe working environment for its employees under the Occupational Health and Safety Act. Accordingly, an employer may introduce reasonable policies and procedures to make efforts to keep its workplace COVID-19 free. Employers may wish to ask each employee prior to entering the workplace whether they are suffering from a fever, cough or shortness of breath, and if the answer is yes, to send the employee home. Some employers may even wish to require their employees to undergo a temperature check prior to entering the workplace, and if their temperature is 37.3 degrees celcius or more, to send them home. A court is likely to conclude that these measures are permissible, provided that employees are provided with advance notice of the new requirements, the screening is conducted discreetly and as confidentially as possible in the circumstances and that all employees (including management) are subjected to the same screening. While an employee who is prohibited from entering the workplace would arguably not be entitled to their wages for the day, an employer may wish to consider paying the employee for the day anyway to avoid disputes. If offered by the employer, the employee may also be eligible to take a paid sick day. It is also important to remember that not all COVID-19 cases will present with a fever and many individuals who are infected will not experience any symptoms. My company has introduced policies, such as social distancing, staggering shifts, prohibiting employees with symptoms to attend at work and encouraging employees to work from home to the extent possible. But some employees are still refusing to come to work on the basis that the workplace is unsafe and that they have a right to refuse unsafe work in accordance with the Occupational Health and Safety Act. How should the company respond? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is insufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason could be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employer may wish to consider permitting the employee to take an unpaid leave of absence. COVID-19 has caused business to decline significantly and my company is looking to save money, while continuing to employ as many employees as possible. What are my options? The following options are available: a) Reducing pay and/or hours of work If the employee does not agree to the reduction, this could result in a claim for breach of contract. Depending on the amount of the reduction, this could also result in claims for constructive dismissal, since the employer is not entitled to unilaterally change key or fundamental terms of an employment contract. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. b) Work Sharing Agreements These are arrangements in which two or more employees would share the hours and job duties of one position. This way, the employer will pay out less in wages and employees will be able to work some hours, rather than none at all. The employer and the employees must all agree to the arrangement. If the agreement is registered with Service Canada, the employees would be eligible for an Employment Insurance (EI) “top-up”. A work sharing agreement must be submitted to Service Canada at least 30 days prior to the proposed start date. c) Temporary Layoffs There are provisions in the Employment Standards Act, 2000 at section 56 which permit an employer to temporarily layoff employees. However, to date the courts have not recognized the right of an employer to temporarily layoff employees at common law. In other words, an employer is only permitted to rely on these provisions if there is an express contractual term between the employer and the employee which permits temporary layoffs. Otherwise, the employee may have a case for constructive dismissal. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. d) Canadian Emergency Wage Subsidy (CEWS) The CEWS provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. The maximum value of this benefit is $847.00/week per employee. For an employer to be eligible for this benefit, they must be able to demonstrate that their revenue dropped by 15% between March 2020 and March 2019, or between March 2020 and the average revenue of January 2020 and February 2020. For continued eligibility, the employer must demonstrate a loss of revenue of at least 30%. The CEWS may enable employers to continue to employ more of their workers without pay cuts throughout the pandemic. Employers will be able to apply for the CEWS through Canada Revenue Agency’s My Business Account portal. e) Deferral of GST and HST Payments Employers are permitted to defer GST and HST payments until June 30, 2020. f) Canadian Emergency Business Account (CEBA) This $25 billion program provides a $40,000.00 loan for certain small and medium-sized businesses that is interest free until December 31, 2022. g) Deferral of WSIB Premiums Employers may defer payment of their WSIB premiums until August 31, 2020. My company has introduced reasonable and detailed policies and procedures to keep COVID-19 out of the workplace. One of my employees has advised that they were diagnosed with COVID-19 and is convinced that he must have been exposed at the workplace. Is my company liable? If the employer has Workplace Safety and Insurance Board (WSIB) coverage, and the employee contracted COVID-19 while in the course of their employment, the employee would likely be entitled to various WSIB benefits, such as compensation for any wages incurred. If the employer does not have WSIB coverage, it will depend on whether the employee can prove on a balance of probabilities that they contracted the virus while at work, and if so, whether the employer was negligent in the course of implementing and enforcing its Coronavirus policies. For example, if an employer implemented a social distancing policy which complied with the Public Health Ontario and Public Health Agency of Canada guidelines, but took no steps to enforce the policy, despite management’s knowledge that the policy was regularly not followed and treated as a joke by its employees, the employer could be liable. My company has not yet implemented a written Coronavirus policy. What should the policy include? This will depend on the nature of the business. The following list is not exhaustive. We recommend that an employer’s Coronavirus policy include the following: a) The individual(s) at the company who employees should contact, if they have symptoms of COVID-19, or believe they have been exposed to or have contracted the virus; b) A requirement that any employee who has symptoms of COVID-19, or believe they have been exposed to or have contracted the virus not be permitted to attend at work until they provide a medical note to the employer confirming that it is safe for them to return to work; c) For companies that are considered essential businesses, a requirement or strong encouragement that those who are able to perform the duties of their job from home work primarily from home; d) A prohibition of gatherings at work – for example, a statement that employees are not permitted to each lunch together in the company’s lunchroom; and e) A requirement that all employees stay at least two (2) metres away from each other when possible, in accordance with social distancing legislation and Public Health Ontario and Public Health Agency of Canada recommendations. Since most employees are likely to be working from home, employers should review their working from home policies, in particular with respect to confidentiality, health and safety/workplace accident and productivity issues. We encourage employers to seek legal advice with respect to implementing a Coronavirus policy. Employees If I am unable to work because I have COVID-19 symptoms, a family member has COVID-19 or I need to take care of my children who are home from school, is my employer required to pay me? Unless the employer offers paid sick leave, or the employee is eligible for payment in accordance with another contractual term or employer policy, the employee would not be entitled to pay from the employer. However, employees who are no longer earning income because of COVID-19 may be eligible for the Canadian Emergency Response Benefit (CERB). This benefit provides $500.00 for up to sixteen (16) weeks. I am concerned that I may become infected with the novel coronavirus at work. Am I entitled to refuse to work? Is my employer required to pay me? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is not sufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason is not entitled to payment. The employee could also be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employee may wish to ask their employer to take an unpaid leave of absence. Can my employer fire me if I miss too much work for a COVID-19 related reason? Absolutely not! Employees are entitled to a protected unpaid leave of absence from work for employees who are unable to work for the following reasons: a) The employee is acting in accordance with an order under the Health Protection and Promotion Act. b) The employee is in isolation or quarantine in accordance with public health information or direction. c) The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace. d)The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure. e) The employee is prevented from returning to Ontario because of travel restrictions. For more details, please see section 50.1(1) of the Employment Standards Act, 2000, which was recently amended. I have been diagnosed with COVID-19. Can my employer require me to disclose this diagnosis to them? An employer has an obligation to maintain a safe working environment. Normally, if an employee is sick and is seeking time off or an accommodation under the Human Rights Code, an employer would be entitled to know the employee’s prognosis as it relates to employment, but not their diagnosis. However, the medical evidence available suggests that COVID-19 is highly contagious. It would therefore be in the interest of the employer and other employee to know whether one of their co-workers has been diagnosed with COVID-19. This way, any individuals with whom the employee diagnosed with COVID-19 can stay away from the workplace and self-isolate, so as to reduce the spread of the virus in the workplace. If an employer becomes aware than an employee has been diagnosed with COVID-19, the employer should take reasonable steps to maintain confidentiality. Rather than disclosing the identity of the individual to the entire workplace, the employer should communicate that there has been a confirmed case of COVID-19 in the workplace. To ensure compliance with public health guidelines, it may be necessary for the workplace to close and for all employees to self-isolate for 14 days. My employer is threatening to temporarily lay me off from work, significantly reduce my hours or cut my salary due to a slowdown in business. Is this legal? If there is a contractual term that permits an employer to temporarily lay off employees, then it can do so, provided that it complies with the temporary layoff provisions at section 56 of the Employment Standards Act, 2000. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. An employer is not permitted to unilaterally reduce hours of work or cut an employee’s salary. This may constitute constructive dismissal and entitle the employee to a severance package. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and maybe willing to accept the change in the terms of their employment, as long as it is intended to be temporary. For more information please contact Employment lawyer Marty Rabinovitch by email marty.rabinovitch@devrylaw.ca or phone 416-446-5093. “This article is intended to inform. Its content does not constitute legal advice and should not be upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawApril 15, 2020September 30, 2020
“COVID-19 cases are on the rise in Ontario. Do I really have to facilitate my ex’s access time with our kids?” The amount of COVID-19 cases in Ontario continues to increase. As of April 10th , there are more than 6,200 confirmed cases of the coronavirus in the Province, with the majority of cases in the Greater Toronto Area – Global News Since this pandemic began, the Canadian Government has been urging Canadians to do one thing: stay home. But for many Canadian children with separated parents, this is not practicable, as those families likely have an existing agreement or court order specifying the duration and frequency of each parents’ time with the children. Many separated parents may be tempted to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent, the Courts have been clear that there may be consequences for that parent once regular court operations resume – Canlii According to Justice Pazaratz of the Ontario Superior Court – Canlii, existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed – Global News If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between your child and your ex, you may meet the test for “urgency”, which would allow your matter to be put before a Judge. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area: Your concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date; Your concern must be serious enough in that it significantly affects the health, safety or economic well-being of you, your ex and/or your children; and Your concern has to be rooted in real evidence. It cannot be speculative or theoretical. If your matter is not urgent, the Courts are encouraging parents, now more than ever, to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children. Children always need the love, guidance and emotional support of both of their parents, but they need it even more during these unprecedented, troubling and scary times – Canlii If one parent is self-quarantined after travel or possible exposure to the virus, and direct physical contact with his/her child is therefore inappropriate at this time, it is important that parents work together to ensure that a child’s relationship with that parent is not negatively affected in any way. Various communication outlets such as Facetime, Zoom, Skype, etc. can help with that and your willingness to engage your child(ren) in these types of video chats demonstrates your ability to support and encourage your child(ren)’s relationship with their other parent and act in accordance with your child(ren)’s best interests. For more information on these issues, as well as information as to how COVID-19 affects child and spousal support, listen to episodes 45, 46 and 47 of the Ontario Family Law Podcast by John Schuman, Certified Specialist in Family Law and managing partner of the Family Law Group at Devry Smith Frank LLP – Devry Law Podcasts By Fauzan SiddiquiBlog, COVID-19, Family LawApril 13, 2020September 30, 2020