What Should I do if I’m in a Car Accident? Ontario is governed by a “no-fault” scheme of insurance for things like covering the damages to your vehicle and providing you certain benefits (“accident benefits”) to pay for physical treatment, replace a portion of your missed income, and provide reimbursement for attendant care expenses. Other Canadian provinces have their own, similar versions of this. If you’re in an accident, the first thing you should do after reporting it to the police and/or a local collision reporting centre and seeking medical attention is to call your insurance company. Your insurer can advise you about the next steps for repairing your vehicle and seeking accident benefits. There may be an inclination to seek the advice of a personal injury lawyer if you were injured. But you might also be concerned you are at fault for the accident and wonder how to protect yourself against future claims. If you think you may be at fault, it is possible that other people who were injured in the incident will bring a claim against you in the future. In most cases, they have two years to do so, though sometimes they will do so well before that and in other cases may have reasons for doing so later than that. It is wise to consider gathering names and information of witnesses who may have observed the incident, particularly if they can speak to details that may suggest you are not at fault, or not fully at fault. For example, if you were making a left turn when the collision happened, it would be useful to know if any witnesses observed the other car coming through on a red light as you were making that turn. If you feel there were outside factors that contributed to the accident, like the actions of another driver, poor lighting conditions, or the like, make note of these things too and report them to your insurance company. They may decide to make further investigations and gather evidence that could be helpful down the road if you are sued. It can be difficult gathering this information as time passes. Consider taking photos of the scene of the accident if possible and of your vehicle. Accidents happen and it can be overwhelming if you’re both injured and concerned about claims against you. Reporting important details to your insurance company and keeping records of those details yourself can help you maintain a solid defence should claims arise against you. For queries regarding insurance defence, please contact our lawyer Maya Krishnaratne at 416-446-5841 or email her at maya.krishnaratne@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Insurance DefenceNovember 27, 2020September 9, 2022
Ontario Stone, Sand & Gravel Association Expresses Support For Aggregate Approval Process The Ontario Stone, Sand & Gravel Association (“OSSGA”) has recently written to the Honourable Doug Ford, premier of Ontario, to state that the Premier should not interfere in the licensing and approval process for pits and quarries in the Province [1]. OSSGA did so in response to alarming comments made by the premier about preventing, at any cost, the licensing of a quarry in the Milton area. Comments here. The aggregate industry is vital to Ontario. The stone, sand and gravel which it supplies are used to build homes, schools, libraries, colleges, universities, hospitals, fire and police stations, as well as to construct roads, highways, water and sewer infrastructure, public transportation systems, workplaces, recreational and social centres, arenas and stadiums. We all contribute to the need for aggregates and we all benefit from the activities of the industry which extracts them. Aggregates are to be extracted as close to market as possible to ensure an economical supply of material with shorter truck trips. This also significantly lowers overall emissions. The industry creates jobs, generates vital revenue for local governments and operates under strict regulations. To balance the interests of all stakeholders and to protect the public, the licensing and operation of pits and quarries are subject to the requirements of the Aggregate Resources Act, the Planning Act and 23 other pieces of legislation and hundreds of regulations. The process also involves consultation with First Nations, the scrutiny of provincial government ministries, the review of local planning authorities and governments, the examination of the community, and, often, a hearing in front of the Local Planning Appeal Tribunal. The process is a careful, deliberative, and rigorous one. It takes years and a wide array of technical and expert reports, including environmental studies, to complete. At the end of the life of a pit or quarry, the land must be rehabilitated, which adds green space to the Province. The aggregate licensing system in Ontario represents a solid, safe and sustainable approach to bringing vital material to the market. It should not be undermined by political considerations. “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, Construction Law, Planning and Development LawAugust 10, 2020September 29, 2020
What to Expect from your Personal Injury Case during COVID-19 This pandemic has affected every aspect of our daily lives in profound ways. However, our firm is still operating as usual albeit remotely, as legal services were deemed an essential service by the province. From a procedural standpoint, there have been a number of changes due to the closure of courts. Suspension of Limitation Periods Under the Emergency Management and Civil Protection Act, limitation periods have been suspended retroactive to March 16, 2020, along with procedural deadlines in the Rules of Civil Procedure, although the Superior Court of Justice’s Consolidated Notice has encouraged all litigants to continue to move their matter along and comply with the Rules as much as possible through virtual means. Though claims can still be issued electronically, this suspension will significantly delay proceedings as courts will not be hearing the majority of non-urgent matters until further notice. Medical Examinations There may be significant delays in obtaining medical records or to schedule examinations. Ontario announced that on May 27, 2020, a number of health care providers including dentists, optometrists, massage therapists, chiropractors, physiotherapists, psychologists etc. can return to work once health and safety guidelines are met. However, this does not mean that these providers can begin seeing their patients right away. Premier Doug Ford noted that “health regulatory colleges are now in the process of developing guidance to ensure high-quality and safe clinical care that must be met before services can resume.” Examinations for Discovery and Mediation Examinations for Discovery and/or mediations may be cancelled, postponed or conducted virtually using video-conferencing software. Though these are less than ideal conditions, if all parties consent to using video-conferencing this could bring about speedier outcomes for a case than waiting for these steps to resume in-person. However, additional precautionary measures should be taken regarding privacy concerns and ensuring high-quality video and audio. Delays in Scheduling Motions and Trials Currently, Ontario Superior Court is not hearing any in-person court matters until July 6, 2020, at the earliest, although they have a list of matters that can be heard virtually which they plan to continue to expand. Civil jury selection or jury trials will also not re-commence at the earliest until September 2020. This can leave the most contentious cases at a standstill until a trial can be scheduled. Considering how long civil proceedings can remain in the legal system, this will delay matters even further. The above information is general in nature and 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 InjuryJune 22, 2020September 29, 2020
Questions Your Landlord Should Not Ask You As a tenant you have rights including the right to privacy and the right to notice upon a landlord’s entry into your premise. As a renter, you should be aware that there are questions that a landlord simply cannot ask you, be it once you have occupied the property or in the stages of completing a rental application. Nationality – A landlord cannot discriminate against you based on your nationality, citizenship or anything related to your ethnic background. This question should never be asked. Sexual Orientation – A landlord cannot ask you if you are straight, gay, lesbian, queer bisexual, etc., and they cannot deny you a rental unit based on your gender identity or orientation. Religion – A landlord cannot ask you about your religious affiliation or if you are religious in general. Public Assistance – While a landlord has the right to know if you are employed, they do not have the right to know where all of your money comes from. If you are employed but on public assistance for example, your landlord cannot treat you differently or deny you the unit. Family Status – Though a landlord has the right to ask you how many people will be living in the unit, they cannot ask if you are pregnant or plan to have children in the future. In that same vein, landlords cannot turn applicants away based on their relationship status. Age – Landlords also cannot discriminate against a renter or applicant based on age. This includes people who are 16 or 17 years old and no longer living with their parents. However, note that a landlord is entitled to verify that an applicant is of age to enter into a legally binding contract. For the purposes of housing, age is defined under the Ontario Human Rights Code as 16 years of age or older as long as the applicant has withdrawn from parental control. Physical Disability – A landlord cannot ask you if you have a physical disability. Such disabilities are protected under human rights legislation and can be viewed as a form of discrimination. Mental Disability – Much like a physical disability, a landlord cannot ask you if you have a prior or current mental disability. Such disabilities are also protected under human rights legislation and can be viewed as a form of discrimination. Notice – As mentioned above, landlords must give proper notice before entering the premise. This question cannot merely be asked at the time of entry but must rather be obtained withing 24-hours minimum of the desired entry time. Repairs – Your landlord is responsible for maintaining the appliances in your rental unit. They are not allowed to ask you to make the repairs yourself. Arrest – A landlord may be able to ask you if you have ever been convicted of a crime, but a conviction is much different that an arrest. If you have been arrested in the past but not convicted, there is no obligation to disclose, and the landlord should be refraining from such questions. Pets – Ontario’s Residential Tenancies Act does not permit landlords to include “no pet” clauses in rental agreements and landlords should usually refrain from asking a renter or applicant if they have pets. The only exception is if the rental property is a condominium and the condominium corporation’s declaration, by-laws or rules prohibits pets. Smoking – The Residential Tenancies Act does not address matters relating to individuals before they become tenants, so if a landlord refused to rent to a person on the basis of smoking or insists on a “no smoking” clause, an applicant has no recourse and can be refused tenancy. However, while a landlord may refuse an applicant for smoking, a landlord is not able to amend an existing lease to add such a provision, or legally evict someone once they become a tenant merely because they committed the specific act of smoking in violation of a “no smoking” clause in the rental agreement. If a landlord wants to evict someone for smoking, they have to prove more than just the act. The key to evicting someone for smoking is if the smoke damages the property or infringes on the rights of other tenants. If you have been asked any of the following, your rights under the Residential Tenancies Act may have been violated and you may have standing to bring an application before the Landlord and Tenant Board of Ontario. Contact Robert Adourian at Devry Smith Frank LLP to have your rights assessed and protected. By Fauzan SiddiquiBlog, Real EstateApril 22, 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 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
MOVING CANNABIS: The Canadian Perspective This blog is co-written by our former articling student, Janet Son. On October 17, 2018 Cannabis became legal in Canada. The federal Cannabis Act[1] sets out the terms and conditions, which are uniform across Canada. It deals with the production, sale, distribution and possession of cannabis. Provinces have power to deal with how it is distributed, sold and can add restrictions; hence there are variances in each province. In Canada there is a need for a federal license to grow and sell cannabis for medical and recreational purposes. Those with licenses are called Licensed Producers[2]. Those who wish to sell cannabis are required to be licensed as well. The provinces provide retail licenses. As with alcohol, in Ontario the Alcohol and Gaming Commission in Ontario is in charge of the retail licensing process and the sale of recreational marijuana in private stores. In the spring of 2019, 25 retail stores were opened in Ontario.[3] With the legalization of the cannabis industry and the establishment of stores comes the need to transport cannabis. The Cannabis Act set out a comprehensive scheme for the transportation and delivery of cannabis. There are many distribution prohibitions that are accompanied with heavy penalties; however there are exceptions. Is it Cannabis? The first question the transportation company needs to ask is what is it planning to move? Is it cannabis? The Cannabis Act, defines cannabis as a plant and those items listed in Schedule 1 of the Cannabis Act, but not those parts of the plant listed in Schedule 2 of the Act. Schedule 1 includes: Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in Schedule 2 Any substance or mixture of substances that contains or has on it any part of such a plant Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained[4] Schedule 2 indicates that the following are NOT included in the definition of cannabis: A non-viable seed of a cannabis plant A mature stalk, without any leaf, flower, seed or branch, of such a plant Fibre derived from a stalk referred to in item 2 The root or any part of the root of such a plant[5] Is the Cannabis Legal? The Cannabis Act defines illicit cannabis as cannabis that is or was sold, produced or distributed by a person prohibited from doing so under Cannabis Act or any provincial act or that was imported by a person prohibited from doing so under this Act.[6] Legal advice will be needed as there are many nuances under the Cannabis Act and its regulations that will need to be considered. Below are some initial areas to consider. Restrictions on Possession and Distribution Sections 8 and 9 of the Cannabis Act sets out the restrictions on possession and distribution of cannabis. Among other things, unless authorized, it is illegal for a person or organization to possess or move more than 30g of dried cannabis[7] (as defined by Schedule 3 of the Act) in a public place, to distribute to an organization, or to distribute cannabis it knows is illicit.[8] We expect that there will be extensive litigation in this regard and particularly around what a court will deem a defence to distribute cannabis it “knows” is illicit. This will be an expensive proposition for those who need to defend such cases. It should also be pointed out that the Act’s definition of a public place includes a motor vehicle.[9] Punishments can include lengthy imprisonment and hefty fines. The Cannabis Act defines distribution as administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.[10] The Cannabis Act allows for the distribution of Cannabis in certain circumstances. It needs to be produced by a Licensed Producer. Everyone in the transportation industry must make sure that the cannabis they are transporting is legal. The Cannabis producer must be specifically licensed. Where two conditions are met, the Cannabis Act allows for transportation of cannabis. The requirements are that (1) parties are acting as agents or contractors on behalf of Licensed Producers[11] and (2) the activity is authorized by provincial legislation.[12] This allows for the transportation of cannabis on behalf of Licensed Producers in compliance with the Licensed Producers regulatory conditions. Legal advice is recommended to anyone planning to transport cannabis to make sure it is legal. Is the Producer a Licensed Producer In order to legally cultivate, process or sell cannabis for medical or recreational purposes, a company must have a federal license. Those players with licenses are referred to as Licensed Producers.[13] Retail Licenses It should be noted that the provincial governments regulate the process for making recreational cannabis available forCannabis Act sale.[14] Agent or Contractor on behalf of Licensed Producer The regime allows agents or contractors to transport cannabis on behalf of Licensed Producers so long as the distribution is in compliance with the Cannabis Act and its Regulations. This is an important exception to the limitations on possession and distribution. This allows the movement of legal cannabis products at its various stages across Canada. The transportation companies will need to make sure they are in compliance with the conditions that the Licensed Producers are required to adhere to. Compliance In agreeing to transport, a company should request a copy of the license and a warranty that the Licensed Producer is in compliance with its own obligations. The transport company should also make sure it is complying with the regime and therefore legal advice should be sought in this regard. Cannabis Tracking System An aspect of the regime that a transporter needs to consider is compliance with the Cannabis Tracking System.[15] This is required by the Cannabis Act. This system is intended to monitor the flow of cannabis and to ensure that only the designated amount of legal cannabis is flowing. The Cannabis Tracking System requires monthly reporting by Licensed Producers, inventory reporting and reporting from health care practitioners. The obligations of the transporters needs to be determined and needs to comply with this regime. Cannabis Transportation Issues Cannabis and its products can be very delicate. There can be light issues, heat issues and moisture issues that can damage the product. More importantly, it is a high value to weight product that has significant demand on the black market and therefore is a target for theft. Consideration therefore needs to be made to transporting the products with the necessary type of vehicle that can supply the necessary conditions and security needed to keep the product safe and viable. Damage to the product and theft will lead to significant expenses for companies and/or its insurers. From a theft perspective, transport companies should weigh the pros and cons of unmarked trucks, versus armoured trucks, versus security guard escorts, versus police escorts. They should also consider the number of drivers per truck, predetermined or blind routes and geo-tracking shipments. While there is little regulation in this regard, the costs associated with theft for companies and the risks prevention measures an insurer may impose will likely create a standard that exceeds any regulations. Importing and Exporting Cannabis Under the Controlled Drugs and Substances Act[16] importation and exportation are considered to be illegal unless otherwise authorized by regulation or an exemption. Cannabis is a controlled substance. In general, controlled substances or precursors may only be imported or exported into Canada by a licensed dealer, licensed producer or registered dealer and each shipment must be accompanied by a valid import or export permit.[17] All permits carry an issuance and expiry date and are only valid for a onetime specific shipment of a controlled substance, cannabis or a precursor. It may only be imported into or exported out of Canada at the port and to the place specified on the permit.[18] The import and export of cannabis may only be authorized for medical and scientific purposes and within the parameters set by the international drug conventions. The import and export provisions for cannabis implement Canada’s international drug treaty obligations. Canada is a Party to the Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol[19], the Convention on Psychotropic Substances, 1971[20], and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988[21]. Health Canada has an obligation to maintain control over the movement of cannabis in a manner consistent with these international drug control conventions.[22] Accordingly, cannabis can only be imported or exported for medical and scientific purposes but not for recreational purposes. These rules apply whether Cannabidiol (“CBD”) or Tetrahydrocannabinol (“THC”) is being imported or exported. Some hemp products that meet certain criteria, may have different restrictions. Legal advice and consultation with Health Canada as well as other appropriate regulatory bodies is necessary to avoid the risk of penalties in the event the products do require permit.[23] The import or export of industrial hemp grain or seed also require an import or export permit issued under the Industrial Hemp Regulations.[24] Importing and Exporting Cannabis Only Licensed Producers with a valid Health Canada permit can import Cannabis products into Canada and only for commercial use.[25] The Cannabis Act bans cannabis imports for recreational use. A Licensed Producer requires a permit from the federal Ministry of Health to export Cannabis. It can only be transported to the designated source. At this time, only cannabis for medical and scientific purposes can be exported into countries that allow cannabis to be imported.[26] Transportation of Imported and Exported Cannabis The import and export is a large growth area and it requires transportation. Shipments of dried cannabis tripled to 1,460 kilograms (3,219 pounds) in 2018, compared with 500 kilograms in 2017 and only 44 kilograms in 2016.[27] Organizations are discussing declassifying cannabis but to date that has not taken place.[28] With less restrictions, there can be an increase in import and export. Canada is one of the first countries to legalize recreational marijuana. Other countries are starting to allow for the use of cannabis for medical purposes, so demand for transporting product will increase. As countries legalize recreational marijuana then the demand for transporting product will be even higher. There are significant issues about importing and exporting to the United States. At the federal level, cannabis remains a controlled substance, but more states are voting to legalize marijuana in one form or another.[29] The United States does not even allow for interstate transportation of hemp, hemp derived products and CBD.[30] This is unfortunate, given the United States is Canada’s closest neighbor and natural trading partner. That being said, some progress is being made. Two Canadian companies made some headway, legally shipping marijuana from Canada to the United States. Tilray received approval from the U.S. government to export a cannabinoid product to California for a clinical trial in September 2018. The DEA approved a shipment of legal medical cannabis from Canada’s Canopy Growth to a research partner in the U.S.[31] This is an industry with heavy regulation, but will hopefully get easier to navigate with time. In the interim, advice from insurance brokers, insurers and lawyers are strongly recommended to navigate the regime without any unpleasant expensive surprises. [1] The Cannabis Act, S.C. 2018, c. 16 [the “Cannabis Act”]. [2] Ibid at s 160.1(1). [3] “First allocation of stores – Expression of Interest Lottery” Alcohol and Gaming Commission of Ontario, online: <https://www.agco.ca/cannabis/cannabis-retail-lottery> [4] The Cannabis Act, supra note 1 at Schedule 1. [5] Ibid at Schedule 2. [6] Ibid at s 2(1). [7] Ibid at Schedule 3. [8] Ibid at s 9(1). [9] Ibid at s 2(1). [10] Ibid at s 2(1). [11] Ibid at s 71(2). [12] Ibid at s 72(2). [13] Ibid at s 160.1(1) [14] Cannabis Licence Act, 2018, SO 2018, c 12, Sched 2. [15] The Cannabis Act, supra note 1 at ss 81-83. [16] Controlled Drugs and Substances Act, SC 1996, c 19. [17] CBSA Memo D19-9-2, supra note 16. [18] Ibid. [19] Single Convention on Narcotic Drugs, 1961 as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961 (entered into force 8 Aug 1975). [20] 1971 Convention on Psychotropic Substances, 21 February 1971 (entered into force 16 Aug 1976). [21] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988 (entered into force 11 Nov 1990). [22] “Import and export of cannabis by licence holders under the Cannabis Regulations”, Health Canada (last modified 12 August 2019), online: <https://www.canada.ca/en/health-canada/services/cannabis-regulations-licensed-producers/import-export.html> [Health Canada] [23] “Can CBD Oil Be Imported Into Canada?” BorderBee (21 May 2019), online: <https://borderbee.com/2019/05/21/cbd-oil/> [BorderBee] [24] Health Canada, supra note 23. [25] “What does the future hold for cannabis importing into Canada?” BorderBee (19 October 2018), online: <https://borderbee.com/2018/10/19/future-hold-cannabis-importing-canada/> [26] The Cannabis Act, supra note 1 at s 62(2). [27] Matt Lamers, “Canadian medical cannabis exports tripled last year, as race for European market position intensifies” (21 March 2019), online: <https://mjbizdaily.com/canadian-medical-cannabis-exports-tripled-in-2018/> [28] Subramaniam, supra note 24. [29] Nathan Reiff, “Marijuana Companies That Legally Export Cannabis to the U.S.” (15 Jan 2020), online: <https://www.investopedia.com/insights/marijuana-companies-legally-export-cannabis-us/> [Reiff]. [30] Ian Stewart “Federal Courts Are Split on the Legality of Transporting Hemp and CBD in Interstate Commerce” (19 Feb 2019), online: <https://www.cannabisbusinessexecutive.com/2019/02/federal-courts-are-split-on-the-legality-of-transporting-hemp-and-cbd-in-interstate-commerce/> [31] Reiff, supra note 31. By Fauzan SiddiquiBlog, Cannabis LawApril 8, 2020September 30, 2020
Canadian Immigration Status during COVID-19 pandemic This blog is co-written by our former articling student, Janet Son. Information regarding the status of flights, border closures and visas is changing by the hour during this pandemic. When it comes to immigration status, there are a few key things to be done to ensure that you are able to remain in Canada. IF YOU HAVE TEMPORARY RESIDENT STATUS AS A VISITOR If you are already in Canada with visitor status that is set to expire (either because you’re nearing the end of a six-month stay or you’re approaching the date stamped in your passport or indicated on a Visitor Record issued to you), you can remain in the country by applying online for an extension of your visitor status. As these applications typically take around 90 days to be processed, this will likely provide visitors with a window within which to wait out the various risks associated with travelling that they would face if they had to leave when their status expires. Applicants with pending applications to extend are considered to be on “implied status” and may legally remain in Canada pending the decision on the application. While the Canadian government recommends applying for an extension at least 30 days before expiry of your current status, an application can be made at anytime, even the day before the expiry. Note that, if you are outside of Canada but hold a valid visitor’s visa or electronic Travel Authorization (eTA), you may not enter Canada at this time unless you fall under this list of exemptions. If you realize too late that your visitor status expired, you can apply online for restoration of your visitor status as long as you do so within 90 days of the expiry. The application process is very similar to the application to extend. The difference is the applicant is technically without status during the period of time pending a decision on the restoration, and foreign nationals should keep a copy of the letter confirming their restoration application was submitted in case called upon by any authority to explain their status. Online, make sure to select “Restore my status” and include as much detail as possible explaining why you need to extend your stay along with paying the restoration fee. If it has been more than 90 days since your status expired, you may consider applying for a temporary resident permit. These are highly discretionary permits and an officer must be convinced that, despite your breach of immigration laws, you have made a case for a further temporary stay. For some who are unable to return to their home country due to increased travel restrictions and health risks, you might argue this as grounds for a temporary resident permit. There are many nuances to an application for a temporary resident permit. If considering this option, it is highly recommended you seek the advice of an experienced immigration lawyer. These considerations apply with modifications to foreign nationals in Canada on a work or study permit. For more information, Devry Smith Frank LLP invites questions by phone call and email. The Government of Canada has strongly advised people to apply online rather than submitting a paper application at this time due to the high volume of applications. This blog is a high-level overview of your options if you are in Canada as a visitor or on a study or work permit and is not a replacement for tailored legal advice according to your circumstances. Each category has a long list of exceptions and requirements that must be carefully followed and not fully captured by this blog post. If you require more advice on your temporary immigration status contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841. By Fauzan SiddiquiBlog, COVID-19, ImmigrationApril 3, 2020September 30, 2020
The Canada Labour Code & Employer Releases THE REMEDY The Canada Labour Code applies to employees working in companies which are governed by federal law, as opposed to provincial law. This includes industries such as public broadcasting, railroads, trucking companies which cross provincial borders, banks, federal government employees and public harbours, to name the most evident. The legislation, among other things, gives every federally regulated employee the right of arbitration when they are dismissed for cause, and in some cases when they are dismissed absent of any allegations of cause. The arbitration process can lead to an award for lost income to the date of the hearing as well as reinstatement and, in certain situations, an award of aggravated damages for injured feelings where the termination was the result of seriously unfair conduct. THE RELEASE ISSUE Many of these arbitration decisions have held that it is illegal for the employer to require the employee to sign a release waiving their rights under the Canada Labour Code as a term of a settlement offered at the time of termination. Notably, this was the case in the 1998 Court of Appeal decision National Bank of Canada v. Canada (Minister of Labour). In that decision, the ONCA upheld the arbitrator’s decision that the employee was entitled to bring a complaint notwithstanding the fact that they had signed a release, stating: Section 168 protects the right of an employee to complain of an unjust dismissal even if that employee has signed a contract by which his or her employment is terminated. Indeed, it is not difficult to envisage a situation where an employee could, after having signed such a contract, realize that the termination of his or her employment is not the result of a legitimate business restructuration as he or she was led to believe, but is instead a coloured or disguised attempt at wrongfully dismissing her or him. This shows the wisdom of the Code in protecting an employee’s access to the remedies against unjust dismissal notwithstanding the signature of a termination contract between the parties. This issue was revisited recently by the Federal Court in Bank of Montreal v. Li. In this case, the employee was presented with and accepted a severance offer. She signed a release by which she gave up all rights to file an “unjust dismissal” complaint under the Canada Labour Code. After she signed the release document and was paid the settlement sum, she proceeded to do what the release document specifically prohibited and she succeeded in court on her right to pursue her remedy. THE RIGHT WAY It is possible for an employer to settle such a case before proceeding to arbitration, but it requires that the employee file the complaint and then proceed to a mediation settlement with the Department of Labour, which is indeed a cumbersome procedure. Employees’ Take Away As has been stated many times before, the words in a contract may not be determinative of your rights. This remedy, in particular, may be quite powerful and supersede any contract in which you expressly agree not to pursue this option. It is always advisable to seek the opinion of a skilled employment lawyer before signing any release or other termination documents. However, even if you have, you may still have the option to seek further remedies. GET ADVICE AND KNOW YOUR RIGHTS This is an important issue to understand both sides. For advice on this and similar issues and, indeed, any employment issue, contact Elyse Mallins of Devry Smith Frank LLP. We regularly advise employees and employers on legal workplace issues. By Fauzan SiddiquiBlog, Employment LawMarch 19, 2020September 30, 2020
