Be Prepared for In-Person Medical Examinations – Personal Injury: Mierzejewski v Brook, 2021 ONSC 2295 During the COVID-19 pandemic, many in the legal profession began transitioning their practice online with the widespread use of Zoom for hearings, trials, examinations for discovery, etc. However, the courts may require plaintiffs to attend in-person medical examinations in personal injury cases despite public health concerns. In Mierzejewski, the defendant brought a motion seeking an order compelling the plaintiff to attend a neuropsychology defence medical examination and a physiatry defence medical examination, both of which would be conducted in person. The plaintiff did not agree to attend a neuropsychological examination on the basis that she did not place any brain injury or head trauma at issue. While the plaintiff agreed to the physiatry examination, the main issue was the form that the examination will take. The plaintiff argued against attending an in-person medical examination, citing the ongoing COVID-19 pandemic and her compromised health situation which included a heart attack and subsequent heart surgery in 2016, breast cancer in 2017, and a lumpectomy in 2018. The plaintiff does not leave her home unless necessary. The Ontario Superior Court was asked to consider whether the plaintiff must attend the neuropsychological medical examination and if so, whether the plaintiff must attend both medical examinations in person. Physiatry Examination The plaintiff argued that her numerous health conditions placed her in the high end risk category to contract COVID-19 and suffer serious health consequences. One of the plaintiff’s doctors advised that physiatry examinations could not be completed virtually and it would be irresponsible for the plaintiff to attend an in-person medical examination given the plaintiff’s numerous health concerns. He cited public health recommendations to those with chronic conditions to limit physical contact with others outside of their residence. The Court noted that since the trial was scheduled for June 2021, the examination could not be postponed until the pandemic improved. Citing Severin v Barker, 2020 ONSC 7784, the Court stated that a plaintiff who is required to attend an in-person defence medical assessment during the pandemic does not pose undue hardship on the plaintiff where the examination is to be conducted with COVID-19 safety protocols in place. The plaintiff had attended numerous necessary medical and legal appointments in person during the pandemic. The Court further noted that the medical assessment centre had extensive COVID-19 protocols in place including COVID-19 screenings, temperature checks, socially distanced waiting rooms, and the use of PPE. Given the presence of extensive COVID-19 safety protocols at the assessment centre, the Court ordered that the plaintiff must attend the physiatry examination in person. Neuropsychological Examination The plaintiff submitted that a neuropsychological examination would not be relevant as she did not put her neurocognitive state at issue on the basis that she did not complain of any head injuries, neurocognitive problems, post concussion symptoms, or psychological problems. The Court referenced the plaintiff’s statement of claim which stated that the plaintiff suffered serious and permanent impairment of important mental and psychological functions, including but not limited to headaches, dizziness, depression, and memory difficulties. The Court also noted several medical reports from the plaintiff’s doctors which indicated that the plaintiff suffered from psychological problems, pain disorder with psychological factors, and chronic pain as a result of the accident. In assessing the plaintiff’s pleadings, the Court concluded that the plaintiff had put her cognitive state in issue and ordered a neuropsychological examination. Citing Severin and the neuropsychologist’s statement that he could not conduct a virtual neuropsychological assessment, the Court ordered the plaintiff to attend an in-person neuropsychological examination. Conclusion The Ontario Superior Court’s decision is concerning given the significant health and safety concerns for at-risk individuals during the COVID-19 pandemic. Studies from the Guidelines for Best Practices in Psychological Remote Assessments from the OPA/CAPDA indicate that remote psychometric testing is just as effective as in-person testing. The reports also note that psychological services and assessments can be conducted effectively through online platforms with some modifications or alternatives for fully remote procedures. Plaintiffs should consider alternative assessment models when faced with an insistence that the plaintiff attends an in-person examination during the COVID-19 pandemic. If you have a specific question related to your personal injury matter contact Marc G. Spivak, managing partner of the personal injury group at marc.spivak@devrylaw.ca or 416-446-5855. “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, Personal InjuryMay 19, 2021May 19, 2021
COVID-19 Civil Jury Trials – Personal Injury The civil jury trials are currently on hold due to Covid-19. The plaintiff anxious to get a day in the court can only move to strike a jury notice in order to have the trial by the judge alone, thereby bypassing the Covid-19 caused civil jury trials vacuum. In the recent case of Louis v Poitras, 2021 ONCA 49 [Louis], a unanimous panel of the Ontario Court of Appeal affirmed that the Covid-19 trial delay is a sufficient and laudable reason for striking the jury notice and allowing the plaintiff to proceed to a Covid-19 non-jury trial. Background The plaintiff in Louis was involved in a motor vehicle accident in the City of Ottawa. She sued an underinsured motorist involved in the accident as well as her own insurer for denied benefits, income replacement and punitive damage. Both defendants issued jury notices and the trials were eventually merged. The plaintiff then brought forth a motion to strike the jury notice, because, due to COVID-19 and the suspension of jury trials, requiring the trial to proceed by jury would result in significant delays. The plaintiff’s motion was granted. Divisional Court In unanimous disagreement, the Divisional Court pointed out a “fundamental” right to have a civil trial proceed before a jury. The court also followed Cowles v Balac, [2006] O.J. No. 4177 [Cowles] in which the Ontario Court of Appeal held that “a party moving to strike a jury bears the onus of showing that there are legal or factual issues to be resolved…which merit the discharge of a jury” and that the court has to determine “whether justice to the parties will be better served by proceeding by trying a case with and without a jury” (Cowles at paras 37-38 cited in Louis – Div Ct at paras 8-9). The court found that while the COVID-19 pandemic had certainly added to the delays that a case may be subjected to if it is to be tried by a jury, simply claiming that one’s trial will be delayed is not enough to strike a jury notice and that in striking the jury notice the motion judge had acted arbitrarily. The successful appellant (the defendant) was awarded a shocking $45,000 in costs. Court of Appeal The Court of Appeal unanimously found that the motion judge had properly considered the specific situation with COVID-19-related delays to jury trials in his region. He had considered Higashi v Chiarot, 2020 ONSC 5523 [Higashi], which was another decision pertaining to a motion to strike a jury notice, released just eight days earlier. In Higashi, the court struck a jury notice after taking into account factors such as (at para 42): • It [was] not known […] when a civil jury trial might be heard in Ottawa. • It seems more probable that civil jury trials will be delayed for quite some time, considering the delays with criminal jury trials to date, and considering the resulting backlogs. • The state of uncertainty resulting from COVID-19, for example, whether it will get better, whether it will get worse, whether there will be [another] wave, how that will impact us here in Canada, more specifically in Ottawa, how that will impact the civil justice system, how that will impact the availability of a civil trial is very much unknown. This state of not knowing favours a trial by judge alone, at this point in time. • Balancing the risks and the rights of the parties, as well, seems to favour striking the jury notice, considering the existing state of uncertainty highlighted above. • As indicated by the Supreme Court of Canada in Hryniak, a fair trial requires a process that is proportionate, timely and affordable, and this high level of uncertainty about when a jury trial might proceed in the future would make the probability of achieving these goals much more unlikely. The Court of Appeal found that the motion judge’s reliance on the information from a concurrent judicial decision would never be an arbitrary exercise of discretion (at para 31). Furthermore, it found that the motion judge appropriately turned his mind to the local conditions and made an unassailable finding that it was unknown when or how a jury trial might be heard in the subject matter (at para 33). This alone was sufficient for striking the jury notice. As a result, the Divisional Court’s ruling was overturned and the motion order reinstated. Conclusion The Court of Appeal’s decision affirms that the current Covid-19 civil jury trials delay and an ongoing and local COVID-19 uncertainty and impact on the administration of justice may be sufficient reasons alone for striking the jury notice and ordering the trial by the judge alone. If you have any further questions regarding Covid-19 motions to strike a jury notice or personal injury lawsuits in general, contact Dejan Ristic, a lawyer at Devry Smith Frank LLP at 416-446-5812, or at dejan.ristic@devrylaw.ca. Home and hospital visits, and video conferencing are available as necessary. “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, Personal InjuryMarch 19, 2021March 19, 2021
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
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
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, 2020August 12, 2024
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
An Open Email Dated June 15, 2020, From Insurance Defence Lawyer, Miriam Tepperman, To Our Attorney General Regarding the Importance of Jury Trials I am a proud insurance defence lawyer. I am proud of my role in the justice system that helps people get back on their feet after an injury while keeping the system honest. Both aspects are needed. The system is set up that for those that are injured and not so injured have to focus on their injuries and limitations in order to receive maximum compensation. Some are justified and some may not be. Juries are an important part of this process. Juries have historically been involved in bodily injury trials in Ontario. Juries bring the approach of the common person. The beauty of the common person’s perspective in Ontario is that there is no stereotypical “common person”. We live in a wonderfully multicultural province that I am extremely proud to be a part of. The “common person” therefore includes the newly married, the single, the LGBTQ, the parents, the non-parent, the working, the retired, the Christian, the Jew, the Muslim, the Hindu, the Punjabi, the atheist, the agnostic, the black, the white, the Hispanic, the Asian, the Arab, the Aboriginal, the differently-abled, the new citizens, the multi-generational Canadians, the grocer, store clerk, the small business owner, the teacher, the doctor, the real estate agent, the union and non-union workers. These are just a few examples of our very diverse tapestry. The jury, therefore, brings new and important perspectives to keep our systems rooted in the values of the day. It keeps our system decisions fresh and forward-thinking. The act of the jury trial has not changed. What I have noticed change since I began my legal career 18 years ago, are the decisions of juries in soft tissue/chronic pain cases. It is these cases that have brought the plaintiff bar, particularly in the last 5 years to question the appropriateness of jury trials. This debate, on a simplified level, is whether a plaintiff suffered muscle pains that resolve within a reasonable period of time or whether the plaintiff suffered permanent ongoing pain that permanently limits the plaintiff’s activities and wellbeing. It is these cases, that a jury is perfect for and their role important. The majority of actions settle long before trial. The actions that are tried, are those where the parties fundamentally do not assess the circumstances the same way. Juries are important in these soft tissue/chronic pain cases. The juries, in addition to the judge, bring to the court their own diversified experiences. The juries bring with them their own perspectives, biases, life experiences and anecdotal experience of others around them. They bring the experience collectively of those who have worked physical jobs and understand the aches and pains associated with it, irrespective of injuries. They bring the joint experience of suffering non-compensable diseases and injuries and how long they suffered, and how they overcame them. They bring collectively the collective experience of the ability to return to some type of work if not the pre-accident work when health, family circumstances or injury strikes. Jury decisions have been changing. Juries are coming back with verdicts that are not as sympathetic to the plaintiffs that they do not believe and or that are not mitigating their damages. Juries are compensating those that they believe are badly hurt. The cases where there are objective injuries, with objective limitations are largely settled and when they do go to trial, those parties are largely compensated appropriately. It is the cases where credibility of the plaintiff that is being tested, where the jury has garnered the most attention. Accordingly, I believe it is important to stay the course. Earlier this year, Attorney General Downey’s changes to the Rules of Civil Procedure and the Courts of Justice Act came into effect. These changes included raising the cap for the simplified procedure process to actions seeking damages of $200,000 or less (previously the cap was $100,000) and juries are no longer permitted as of right for civil actions that fall within the simplified procedure unless they meet a specified exception (bodily injury cases do not). Accordingly, soft tissue injuries will fall within the simplified procedure. There is no doubt that the trial process is expensive and frustrates both the plaintiffs and defendants. There are long delays in the system due to an overburdened justice system. Weighing the issues and concerns, the benefits are hoped to outweigh the drawbacks in the circumstances where damages suffered fall within the $200,000 damages award threshold. These changes, however, likely will not address the circumstances where the defendant believes it is a matter that falls at most within the simplified procedure but the plaintiff believes that it is a severe chronic pain case. Perhaps more severe penalties are needed for those actions brought in the regular procedure that should have been brought with the simplified procedure. While the plaintiff bar is quick to point out that defendants are backed by insurers in these types of cases, they fail to mention two important points. First, not all claims are fully insured. It is common now to see claims seeking $2,000,000 or more, while non-commercial defendants generally hold insurance policies of $1,000,000. Accordingly, the defendant him or herself, and not the insurer, is exposed to those excess amounts. The second matter that is not talked about by the plaintiff bar is that over the last number of years, plaintiffs have been getting some type of litigation insurance to help them fund the litigation. Accordingly, plaintiffs are behaving very differently in litigation, driving costs up further than they had when I had started my career. Many Ontarians own vehicles and if not know people that do so they understand that this litigation is largely backed by insurance. They don’t need to be told. Similarly, Ontarians are proud of our publicly funded health care system and know that is available to the injured as well. These days many plaintiffs have some type of litigation insurance to help them fund the litigation and protect them from cost awards. None of this is disclosed to the jury. The role of the jury is to decide the facts of the cases and assess the damages arising from those facts. It is not the role of the jury to worry about how the litigation is paid for and what impact the requirement to pay will have on an individual party. There is no doubt that we face unusual hurdles due to the COVID-19 pandemic. There is no doubt that the system can be modernized by adopting more technology. Let’s use this time to streamline the processes but not to silence voices. The voice of the jury, particularly for the amounts at issue through the regular process is important to make sure the justice system hears the voice of the evolving values of the community it serves. By Fauzan SiddiquiBlog, COVID-19, Insurance DefenceJune 15, 2020September 29, 2020
An Open Email dated June 12, 2020, from Personal Injury Lawyer, Marc Spivak, to our Attorney General Regarding Suspending Juries in Civil Law Cases To the Honorable Doug Downey Attorney General of Ontario I am a personal injury lawyer and have been for 28 years. The first 9 years of my practice I acted for insurance companies on the defence of insurance matters. I can tell you firsthand the almost complete unfairness of the archaic jury system that we have. A system that not only creates a complete advantage for insurance companies, but it also puts every injured victim in the unfair position of essentially overcoming an inherent misunderstanding of jurors why they are being forced in a courtroom leaving their jobs and family without pay for often 2-8 weeks. A system that prevents lawyers from educating the jurors about the involvement of an insurer; of the real discounted losses that the victim is faced with in car accident cases; and of the costs to the victim of being forced to prove a claim dragged on by insurers for sometimes 5-6 years. Every insurer files a jury notice in almost every personal injury matter for a reason. It is negligent for a lawyer or an insurer not to deliver a jury notice. There is no reason for our government to provide insurers with an unfair advantage that has resulted over the last 10 years in massive delay in being able to get to a civil trial. To have to wait 2-3 years to get to a 15-20 day trial date that may or may not go ahead as scheduled is barbaric for victims. Trial by judge alone is at least 50-60% faster and more efficient. Given the COVID risks, it is impossible for the foreseeable future to force our citizens to face the real health risks of sitting on a jury. It would be completely unfair in the circumstances to further delay the civil trial list by keeping juries as part of our civil trial system on personal injury matters (with the possible exception of med mal and sex assault cases). In temporarily removing juries we can free up limited judicial resources and get rid of the delay in getting to a civil trial (which would speed up the ability to get criminal cases dealt with in a timely manner), all at less cost to taxpayers. My suggestion is to temporarily suspend juries in the civil system (with the exception of med mal and sex assault cases) and make our justice system run more smoothly at less cost. I look forward to your decision. “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, Personal InjuryJune 12, 2020September 29, 2020
Reduced Travel Restrictions for Relatives of Canadians and PRs Recently, the government announced that “immediate family members” of Canadians and Canadian permanent residents will be exempt from the prohibition on entry to Canada if they are coming to be with their Canadian or PR family member for at least 15 days. This will hopefully serve to reduce the uncertainty many have faced since measures under the Quarantine Act came into force at the end of March, prohibiting entry to Canada for optional and discretionary purposes. Family members seeking to reunite with Canadian spouses, children and parents have up to now been often subject to an assessment by airlines and Canada Border Services Agency personnel about whether they were entering for an “essential purpose.” While ordinary rules regarding entry to Canada will still apply, this latest announcement should mean that those who can demonstrate they are coming to reunite for a period of at least 15 days may do so without having to demonstrate an “essential purpose.” “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, ImmigrationJune 9, 2020September 29, 2020