How To Prepare For Changes In A Shareholder’s Life Circumstances: Buy-Out Clauses A shareholders’ agreement often includes the framework within which the business relationship will be governed. It can also provide mechanisms to address the dissolution of that relationship. This entry complements our previous blog on provisions by which shareholders or the corporation, can force a share transfer. Disability, Death, or Insolvency of a Shareholder An individual shareholder’s demise, insolvency or general inability to carry out his or her duties can be challenging for the remaining business partners. A shareholders’ agreement can provide that the remaining shareholders, or the corporation itself, are obliged to purchase the shares previously held by the affected shareholder or by his or her estate, and can set out the payment terms for the transaction. It can also include life insurance provisions, pursuant to which the insurance proceeds can be applied to payment of the purchase price. Valuation Mechanism Shareholders’ agreements will typically provide a mechanism by which to determine the fair market value of the shares at a given point in time. Provisions of this type can help avoid disputes as to value and as such are particularly helpful should the business relationship become less than amicable. Transfer Restrictions The shareholders’ agreement can restrict individuals or legal persons to whom or to which a shareholder may transfer his, her, or its shares. Provisions of this nature help ensure that the remaining shareholders have a means by which to control those with whom or with which they are business partners. There are a variety of provisions that can be used in shareholder agreements to govern shareholder buyouts or provide for the sale of a company in the event of unforeseen circumstances that end the relationship between shareholders. To further discuss these provisions or other aspects of shareholder agreements, please contact Elisabeth Colson, senior corporate lawyer at Devry Smith Frank LLP. You can reach her directly at (416) 446-5048 or by email at lisabeth.colson@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, Corporate LawApril 26, 2021July 5, 2023
New Process for Administering Small Estates in Ontario Following an announcement by the provincial government this past February, on April 1, 2021 Ontario’s new procedure to administer small estates came into effect. The new procedures, which are designed to ease the administration process on “Small Estates” are welcomed and should facilitate a cost effective and timely probate on modest estates. Under The Smarter and Stronger Justice Act,[1] amendments were made to The Estates Act[2], one of which was the introduction of the “Small Estate.” A Small Estate is an estate with a value of $150,000 or less. The new and simpler procedures for Small Estate administration include the following: completing the new and simpler application forms;[3]in some instances, removing the requirement of the applicant to provide certain supporting documents (such as an affidavit of service for the notice of application); andin most circumstances, removing the requirement to post a bond.[4] Estate administration tax is still payable on Small Estates. As with all estates, the first $50,000 is exempt from estate administration tax, and the remainder is taxed at approximately 1.5% of the value of the estate as of the date of death. Once probate has been issued, estate trustees are required to file the Estate Information Return with the Ministry of Finance within 180 days of the issuance of probate. Regardless of the amount of money held in an account, banks and other financial institutions often cannot take instructions from an estate trustee unless probate has been granted. By easing the administration requirements on Small Estates, the hope is that less people will leave these estates unsettled due to the burdens and costs associated with probate. We understand that dealing with a loved one’s estate can be overwhelming. If you have questions regarding Ontario’s new procedures for the administration of Small Estates, or any questions regarding wills and estates in general please contact Esther Abecassis, wills and estates 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.” [1] Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11 – Bill 161. [2] Estates Act, R.S.O. 1990, c. E.21. [3] the following new forms have been introduced pursuant to the Rules of Civil Procedure (R.R.O. 1990, Reg. 194: Rules of Civil Procedure under Courts of Justice Act, R.S.O. 1990, c. C.43) Form 74.1A – Application for a Small Estate Certificate (the “Application”); Form 74.1B – Request to File an Application for a Small Estate Certificate or an Amended Estate Certificate; Form 74.1C – Small Estate Certificate (the “Certificate”); Form 74.1D – Registrar’s Notice to Applicant in an Application for a Small Estate Certificate or Amended Small Estate Certificate; Form 74.1E – Application to Amend Small Estate Certificate; and Form 74.1F – Amended Small Estate Certificate (the “Amended Certificate”) [4] New section 36(3) of the Estates Act provides that “subject to section 6, a bond shall not be required in respect of a small estate, unless, (a) a beneficiary of the estate is a minor; or (b) a beneficiary of the estate is incapable within the meaning of section 6 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether or not the person has a guardian.” By Fauzan SiddiquiBlog, Wills and EstatesApril 16, 2021July 28, 2021
The First Steps After Being Criminally Charged During The COVID-19 Pandemic If you have been arrested by the police and are now required to navigate the criminal justice system, it is useful to know in advance what to expect, particularly with an eye to the latest changes to criminal court proceedings amidst the pandemic. A number of things can happen after being arrested and charged. If the allegations are not particularly serious, and the accused does not have a criminal record, the police may release the accused on a “promise to appear” or an “undertaking”. This means that the release is conditional on the accused’s promise that he or she will attend court. An undertaking may also contain various other conditions including no contact with any complainant or a condition that the accused stay within the jurisdiction. Bail Hearing If the alleged offence is more serious, or there are safety or other concerns, the police may not be willing to release the accused. Instead, the accused will be kept in custody until they are brought before a court within 24 hours for a bail hearing. Due to the pandemic, the accused are no longer brought to the physical court but are typically held in custody at the police station or a provincial detention center. They attend court virtually – via either phone or video conference. At court, the Crown Attorney or prosecutor will decide whether they are agreeable to a release of the accused on a consent basis and the terms of that release. If the Crown Attorney is not agreeable to a consent release of the accused, then a Judge or Justice of the Peace will conduct a “show-cause” or bail hearing where the Justice will determine whether the accused will be released and the form of the release, or whether the accused will remain in custody while the trial of the charges is pending. In determining whether to release an accused, the Justice is to impose the least restrictive form of release possible. When making their decision, the Justice is to consider three grounds for detention, which are outlined in the Criminal Code of Canada. The first or primary ground is whether the detention of the accused is necessary to ensure he or she attends court. The secondary ground is whether the detention of the accused is necessary for the protection or safety of the public. The third or tertiary ground is whether the detention of the accused is necessary to maintain confidence in the administration of justice. This final ground typically arises with very serious charges and where the Crown has a strong case. If an accused is released, they may be released with or without a surety. A surety is a person, often a friend or family member of the accused, who will have to promise to the court that they will supervise the accused to ensure he or she will comply with the bail conditions. The promise to supervise the accused often comes with a no deposit pledge of money that could be lost should the surety fail to properly supervise the accused. Prior to the bail hearing, the accused’s counsel and the Crown Attorney are encouraged to discuss the issues that the Justice presiding over the bail hearing will have to decide upon. This includes discussing the form of release and whether a surety is suitable or even required, as well as any proposed conditions of the release. Bail courts in most Ontario courthouses were very busy before the pandemic. That has only intensified. Given the current technological constraints, it is crucial to have the main issues sorted out in advance as much as possible. Disclosure and Case Management The next step after being released, or after a bail hearing, is to obtain disclosure. Disclosure is all of the materials and information the Crown has in relation to the charge(s). Every accused is entitled to receive all the documents the Crown has containing evidence against (or for) the accused, unless the documents are privileged or clearly irrelevant. During the pandemic, the accused should usually not go to the courthouse to obtain disclosure, but rather contact the Crown Attorney’s office that is prosecuting the case to ask them how to obtain their disclosure. Where possible and appropriate, the Crown will typically email or otherwise provide a digital copy of the disclosure via some form of electronic document sharing. Under normal circumstances, disclosure materials would be provided at the first court appearance and additional court appearances thereafter. These appearances are criminal case management dates and they are held after an accused is charged but before the matter proceeds to trial or is resolved. The purpose of these dates is for the Crown and accused to advise the court on the status of the case and ensure that it is moving forward. As a result of the pandemic, these case management court appearances are now held virtually and the accused or their lawyer can attend via ZOOM – either by video conferencing or calling in by phone. The ZOOM coordinates for case management courts in each courthouse in Ontario can be found in the latest notice and practice direction for criminal proceedings issued by the Ontario Court of Justice. Navigating the criminal justice system as an accused is daunting under any circumstances. The ongoing pandemic has changed certain aspects of the system that may at times simplify the process, but may also make navigating the system more difficult. If you need help with your criminal law matter contact David Schell at 416-446-5096 or David.Schell@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, Criminal LawMarch 8, 2021March 15, 2021
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
Amendments to the Employment Standards Act, 2000 – May 29, 2020 – Impact on Temporary Layoffs This blog is co-written by our former articling student, Janet Son. On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). During the pandemic, many businesses were forced to close and were faced with an impossible situation. According to the Financial Accountability Office of Ontario, approximately 2.2 million Ontario employees have experienced temporary layoffs, job losses or reduced hours in 2020. However, under the ESA if a temporary-lay off runs longer than 13 weeks in any period of 20 consecutive weeks it is considered a deemed termination and the employee would be entitled to termination pay and severance pay (a longer layoff of up to 35 weeks in a period of 52 consecutive weeks is permitted if certain criteria are met). Under Reg 228/20, businesses are no longer required to pay the termination pay and severance pay to their employees, pursuant to the ESA, due to these types of deemed terminations. As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. Affected workers will remain employees and will also remain eligible for federal emergency income support programs. The regulation applies retroactively from March 1, 2020, and will expire 6 weeks after the state of emergency ends. Also, Section 7 of the regulation states that a temporary reduction or elimination of an employee’s work hours due to COVID-19 will not constitute constructive dismissal during the COVID-19 period. Further, in accordance with section 8, complaints filed with the Ministry of Labour due to a reduction or elimination of work hours “shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period” and was related to COVID-19. However, Regulation 228/20 does not alter the common law with respect to constructive dismissal, as it relates to temporary layoffs under the ESA. Currently, it is well-established law that the 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. Typically, in order for the common law to be altered by statute, there would need to be express language in the statute to that effect, which is not the case here. How the Court will interpret and apply Reg 228/20 remains to be seen The courts may still find that employees have been constructively dismissed at common law, but they may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours will also be relevant. Key Takeaway for Employers: Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA while the state of emergency is still ongoing and 6 weeks thereafter. However, if an employee has already been given a written notice of termination between March 1, 2020, and May 29, 2020, they will not automatically deemed to be on infectious disease emergency leave. Finally, this 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. Key Takeaway for Employees: Employees will no longer be able to claim termination and severance pay pursuant to the ESA once the temporary lay-off period under the ESA ends. They now also cannot file a complaint with the Ministry of Labour as it will automatically be dismissed if the elimination or reduction of hours was due to COVID-19. However, employees can still proceed with claims in the civil courts pursuant to the common law. 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 LawJune 2, 2020July 5, 2023
How to Deal with an Emergency Parenting Motion during COVID-19 This blog is co-written by our former articling student, Janet Son. Co-parenting with your ex-partner is difficult even in normal times. Now trying to co-parent amidst a pandemic with ever-changing safety guidelines is even more challenging. The courts are closed until at least July 6, 2020, and only hearing urgent matters. Despite this, there has been a flood of COVID-19 era decisions on parenting arrangements. Ribeiro v. Wright by Justice Pazaratz set out the principles on how parents should be approaching access orders during COVID-19: The presumption is that all existing parenting orders should comply with subject to modifications that may be necessary to ensure that COVID-19 precautions are adhered to (para 7) A blanket policy that children should never leave their primary residence to visit their other parent is inconsistent with a comprehensive analysis of the best interests of the child (para 10) A custodial or access parent may need to forgo their parenting time temporarily if they are subject to specific personal restrictions such as self-isolation for 14 days due to travel, sickness or exposure to illness (para 12) A parent’s personal risk factors such as employment as an essential worker may require controls and precautions before direct contact with their child can take place (para 13) Finally, reckless behaviour such as failing to comply with social distancing measures may raise concerns about parental judgment in which parent-child contact may be reconsidered (para 14) If you are considering bringing an emergency parenting motion or you have been served with one, Justice Pazaratz outlined a number of requirements (para 21): The parent bringing the motion must bring specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 safety protocols The parent responding must provide specific and absolute reassurances that COVID-19 safety measures are being followed Both parents must bring specific and realistic time-sharing proposals that are child-centred Judges will take judicial notice that many public facilities are closed and so parents should take this opportunity to spend time with their children at home Here are some cases where judges applied or distinguished Ribeiro v. Wright: WHEN YOUR CHILD IS IMMUNOCOMPROMISED In Trudeau v. Auger, an emergency motion was brought by the mother to temporarily suspend in-person access with the father as the child was immunocompromised. In this case, Justice Kwolek ordered the father to take the following precautions: disinfect frequently touched items such as doorknobs, maintain social distancing, stay at home except for necessary trips to the grocery store or pharmacy, allow no one else to enter the home, do not take the child to any public locations, wear a mask and stand at least 2 meters away when together (para 52). Justice Kwolek also outlined circumstances that may justify a suspension of access in the future: Evidence of a parent’s disregard for the safety of their child Specific medical evidence regarding the child that access would place them at significant risk of COVID-19 Specific evidence that shows increased risk due to travelling between households in your particular community If a parent becomes ill, access will be temporarily suspended If a more restrictive order is made by the government to restrict movement even further, existing parenting schedules should be re-visited (para 59) WHEN SOMEONE IN YOUR HOUSEHOLD IS A FRONTLINE WORKER In Blaskavitch v. Smith, the mother brought an emergency motion as the father’s partner is a personal support worker at a long-term care facility (para 18). The father set out in great detail the protocols in place at the facility his partner works at and the precautions they are taking within their home. They also confirmed that there have been no cases of COVID-19 at the facility (para 43). As a result, Justice Trousdale found that the father and his partner were taking all reasonable precautions and there was no evidence that his partner was not complying with work protocols. There was no cause for a temporary change in the residence of the child during COVID-19 (para 44). Though the motion was dismissed on a without prejudice basis, Justice Trousdale expected each parent to inform the other immediately if any person in their household tests positive or presents symptoms of COVID-19 so that temporary changes to access can be made. Key Takeaway: Avoid the temptation to use this situation as an opportunity to change the parenting status quo, unless you can provide concrete evidence specific to your child that they will be in danger from the existing parenting order. There are only narrow circumstances in which the court will vary an order in order to maintain as much consistency and normalcy for your children during this very distressing time. If you have been served with a motion, rally as much evidence to show that you are taking all precautions at your workplace and at home to protect your children from COVID-19. To conclude, court resources are currently scarce and the judiciary is urging parents to cooperate as much as possible and avoid litigation except only for the most serious cases. If you have more questions about bringing or defending against an emergency parenting motion during COVID-19 contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@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, Family LawJune 1, 2020September 29, 2020
COVID-19 – Employer and Employee Frequently Asked Questions Part II This blog is co-written by our former articling student, Janet Son. Employers When am I able to re-open my business? The Province of Ontario presented a multi-phase plan to re-open the economy titled “A Framework for Reopening our Province”. The Province will follow a gradual approach to allow health officials to assess the conditions before moving on to the next phase. The City of Toronto provided a guide for Employers, Workplaces and Businesses on procedures to protect employees and customers. As of May 16, 2020, the following businesses are allowed to re-open: Golf courses, with clubhouses open only for washrooms and restaurants open only for take-out Marinas, boat clubs and public boat launches for recreational use Private parks and campgrounds to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal As of May 19, 2020, the following businesses may re-open: Retail services that have separate street-front entrances with measures in places, such as limiting the number of customers in the store and booking appointments beforehand Seasonal businesses and recreational activities for individual or single competitors such as tennis, track and field and horse racing Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance Lifting essential workplace limits on construction Certain health and medical services such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries For businesses offering curbside pickup, Workplace Safety and Prevention Services produced a guide on health and safety for curbside pickup and delivery. What do I do if my employee cannot return to work because they are responsible for childcare while their children are at home from school or daycare? Under section 50.1 of the Ontario Employment Standards Act, the employee may be able to take unpaid Emergency Leave if they must perform childcare duties due to the closure of daycares and schools. The employee is required to advise their employer that they will be doing so and if they already started their leave, to notify their employer as soon as possible. Under subsection (4.1) an employer is allowed to ask for evidence that is reasonable in the circumstances, however, they may not require the employee to provide a certificate from a qualified health practitioner as evidence. Finally, the entitlement to leave generally ends once the state of emergency is terminated. Am I required to provide personal protective equipment to my employees? The Public Health Agency of Canada provided a guide for employers on preventing COVID-19 in the workplace. Employers should provide the necessary facilities and cleaning products to maintain a safe and clean work environment. This includes providing employees with personal protective equipment recommended by occupational health and safety guidelines. Employees Can I refuse to work because I am worried about infection from riding public transit? If you have a general fear of contagion and there has not been an order from the Medical Officer of Health, failing to attend work could be considered a “willful neglect of duty” and could lead to termination. However, if you are in a high-risk group, for example, you are over the age of 60, immunocompromised and/or suffer from another underlying health condition, you may have grounds under the Ontario Human Rights Code to discuss with your employer to ask for temporary accommodation. You may also be entitled to an accommodation if you live with someone who is considered high risk. For how long can my employer temporarily lay me off? According to section 56(2) of the Employment Standards Act, a temporary layoff is: “(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; (b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and, (i) the employee continues to receive substantial payments from the employer, (ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan, (iii) the employee receives supplementary unemployment benefits, (iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so, (v) the employer recalls the employee within the time approved by the Director, or (vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee […]” In other words, a temporary lay-off can become a wrongful dismissal if it extends longer than 13 weeks in a period of 20 consecutive weeks without any other payments or benefits. Or after 35 weeks in a 52 week period if the employee receives payments or benefits from the employer or the government. However, the employer does not have a common law right to temporarily lay off an employee. In other words, the employer may not be able to temporarily lay off an employee at all, unless there is a contractual provision which permits the layoff. In the absence of a contractual provision, the layoff may constitute a constructive dismissal. My job has changed significantly, including duties and pay – is there anything I can do? Typically, unilateral changes by the employer without the employee’s consent can amount to constructive dismissal. However, if the changes are made in order to abide by COVID-19 health recommendations or requirements, for example modifying an employee’s hours as part of an employer’s plan to stagger shifts to reduce the number of employees in the office to ensure that physical distancing is possible, such changes may not constitute constructive dismissal. The courts have not yet explicitly addressed these issues, however, the extraordinary circumstances of a public health crisis will be relevant to determine whether the changes were reasonable. If you have more questions about employment law during COVID-19, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 1, 2020September 29, 2020
Canada Labour Code Adjudicator Awards Costs in Unjust Dismissal Case This blog is co-written by our former articling student, Janet Son. In P.D. and The Bank of Nova Scotia, Re, 2020 CarswellNat 640, Adjudicator Kaufman considered the issue of whether the Canada Labour Code (the “Code”) authorized adjudicators to award costs in unjust dismissal cases. The complainant P.D. worked as a customer service representative at the Bank of Nova Scotia (the “employer”). She was dismissed due to allegations that she misappropriated $1,000.00 of the Bank’s funds and attempted to cover up the theft while serving customer Mr. X. Counsel for the employer argued that there were no grounds under the Code for a costs award in an unjust dismissal claim, citing Canadian Human Rights Commission and Mowat v. Canada (Attorney General), 2011 S.C.C. 53 (CanLII) (“Mowat”). Employer’s counsel argued since “costs” is a legal term of art, if Parliament intended to confer the authority to award costs then it would have been explicitly stated in the legislation. However, Adjudicator Kaufman found that Mowat was decided specifically in the context of the Canadian Human Rights Act and the absence of a specific authority to award costs should not be generalized to other administrative bodies. Adjudicator Kaufman reviewed the post-Mowat decision of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII) and found that the Justices of the Supreme Court confirmed that as part of the remedial scheme set out in section 242(4) of the Code, adjudicators have the authority to award costs. The applicable provision being: “Unjust dismissal (4) If the Board decides under subsection (3) that a person has been unjustly dismissed, the Board may, by order, require the employer who dismissed the person to (a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person; (b) reinstate the person in his employ; and (c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.” Adjudicator Kaufman concluded that the wording “do any like thing that is equitable…” conferred a broad discretion for adjudicators to award costs as is appropriate. As such she applied the factors set out in Rule 400 of the Federal Court Rules, to determine a costs award. The appropriate scale of costs was also canvassed, based on the following factors: adjudication is a fact-finding process, the onus is on the employer to establish just cause for dismissal on a balance of probabilities if just cause is not proven the employer is at risk of compensating the complainant for their legal costs, and the purpose of costs is not to punish the employer but to “make whole” the complainant that spent resources to test their unjust dismissal. Adjudicator Kaufman concluded that partial indemnity costs would be insufficient since P.D. had “done little to contribute to the costs she incurred, other than to have been misjudged by the employer.” As a result she awarded substantial indemnity costs in the amount of $90,466.40. Key Takeaway: Employees under the Code may have an increased chance of being awarded substantial indemnity costs in the adjudication of their matter as compared to commencing a wrongful dismissal claim at the Superior Court where costs awards are typically made at the partial indemnity rate. If you have more questions about your wrongful dismissal, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Labour LawMay 26, 2020September 30, 2020
Long-Term Care Homes Ordered to Allow Nurses to Determine Appropriate levels of PPE on the Job This blog is co-written by our former articling student, Janet Son. Long-term care homes (“LTC homes”) remain particularly vulnerable in the country’s fight against COVID-19. Reportedly, LTC homes are connected to 79% of COVID-19 related deaths in Canada. The Ontario Nurses Association (“ONA”) sought an interlocutory injunction to order the following LTC homes: Eatonville Care Centre, Anson Place, Hawthorne Place and Henley Place, to stop breaching Directives issued by the Chief Medical Officer of Health for Ontario (“CMOH”) under the Health Protection and Promotion Act (HPPA). Directive #5 states that if a health care worker determines that an N95 respirator is required in the delivery of care to a patient or resident, the LTC home must provide and not unreasonably deny access to appropriate Personal Protective Equipment (“PPE”). Moreover, Directive #3 makes it clear that LTC homes must use staff and resident cohorting to prevent the spread of COVID-19, which involves ensuring residents are separated by at least 2 meters and designating staff to care for either ill or healthy patients. On April 23, 2020, the Ontario Superior Court of Justice released its decision ruling in favour of the ONA, granting the injunction and speaking to the urgency of this life or death matter. In these four facilities, over 110 residents contracted COVID-19 with at least 54 dying from the illness and this number is growing every day. At least 7 nurses who worked at these facilities also contracted COVID-19, with one needing to be hospitalized. Eatonville Care Centre According to affidavit evidence of Regina Borkovskaia, a nurse at Eatonville, nurses were denied N95 respirators even when caring for residents diagnosed with COVID-19. Management claimed that “there were not enough N95s to go around, and that in any case, they were unnecessary”. Borkovskaia believes the decision to downgrade PPE was because of short-term economic expediency rather than to protect workers and patients. There were over 25 publicly confirmed deaths and 49 cases of COVID-19 at this facility, though the ONA believes the death count is closer to 43 rather than 25. Anson Place As of April 14, 2020, 69 residents of Anson Place tested positive for COVID-19. Only nurses providing nose swab testing to residents were allowed an N95 respirator. Nurses were told to remove their N95 respirators and to use surgical masks instead despite providing care for patients that were actively contagious. Furthermore, residents diagnosed with COVID-19 were not segregated into separate rooms and were less than 2 meters away from other residents in the same rooms, along with being treated by the same nursing staff. Hawthorne Place As of April 12, 2020, there were six diagnosed cases of COVID-19 and one death at Hawthorne Place. When staff demanded access to N95 respirators, limited supply was made available and nurses were given one to use for their entire shift. They were kept under lock and key by management and some nurses deposed they were denied the N95 though they were working in wings with active outbreaks. Furthermore, while COVID-19 test results were pending, the residents and the nurses were not directed to self-isolate. Rather, they were forced to return to work. Henley Place On March 29, 2020, a resident tested positive for COVID-19. The ONA requested that N95 respirators be provided to staff interacting with residents diagnosed or suspected of having COVID-19. This request was denied and the nurses were advised to use surgical masks even when caring for patients with a confirmed diagnosis. Furthermore, staff had to go through a lengthy bureaucratic process before being approved to receive an N95 respirator. The affidavits submitted detailed examples of nursing staff who were required to perform emergency procedures on COVID-19 patients without the use of N95 respirators. The Labour Dispute and the Precautionary Principle The ONA has filed grievances regarding these practices and a hearing had not yet been expedited. As a result, the ONA felt they had no choice but to request emergency relief from the Superior Court. In the court’s decision, Justice Morgan highlighted Article 6.06 of the Collective Agreement between ONA and the LTC homes entitled “Health and Safety”, which states that “When faced with occupational health and safety decisions, the Home will not await full scientific or absolute certainty before taking reasonable action(s) that reduces risk and protects employees.” Further, under section 25(2)(h) of the Occupational Health and Safety Act, employers are to “take every precaution reasonable” for the protection of the worker. In the context of COVID-19 where the modes of transmission of the virus are not yet fully known, Justice Morgan found the precautionary principle applied to support a requirement for nurses to be provided with N95 respirators when providing care to a confirmed or suspected case of COVID-19. Furthermore, Justice Morgan found that the LTC homes’ argument that N95s are in short supply and on-demand access by nurses would impact the availability to others, “sorely miss[ed] the mark”, in particular since the nurses were sacrificing their personal interests and safety to serve the residents of these homes. The test for injunctive relief was met and compliance with Directive #5 ordered. If you find yourself with similar concerns about adequate access to PPE at the workplace, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “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, COVID-19, Employment LawMay 19, 2020September 30, 2020
“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.”
Express Entry Roadmap On May 8, 2020, Devry Smith Frank LLP hosted an Express Entry Roadmap webinar to share insights and information on popular routes to Canadian permanent residence. The webinar was presented by Maya Krishnaratne, a partner in our Immigration Law Group. Highlights of the seminar and slides are available here. Please note that the information contained throughout is current as of the date of publishing this blog. If you would like specific direction relating to your own case, we encourage you to contact us for an assessment and most up to date information. Maya can be reached at 416.446.5841 or maya.krishnaratne@devrylaw.ca. “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, ImmigrationMay 13, 2020September 30, 2020
