PERSONAL FINANCIAL SUPPORT AVAILABLE TO YOU IN THE CKL FROM THE GOVERNMENT DURING THE PANDEMIC - WHAT YOU NEED TO KNOW TODAY.

There are four, primary federal government supports available to individuals in the CKL during the pandemic:

  • Employment Insurance.

  • Canada Recovery Benefit.

  • Canada Recovery Sickness Benefit.

  • Canada Recovery Caregiving Benefit.

Employment Insurance (EI)

In response to the pandemic, temporary changes have been made to the EI program that are in effect from September 27, 2020 for a 1-year period. One of the most significant changes is a decrease in the number of hours required to qualify for benefits. Only 120 insured hours is required to qualify due to a one-time credit of either 300 insured hours if you are applying for regular benefits or 480 insured hours if you are applying for sickness, maternity, parental or caregiving benefits. Benefits are paid at a rate of at least $500 per week for regular benefits and $300 per week for extended parental benefits. The requirement to submit a medical certificate if you are applying for sickness benefits has been removed. For those applicants who received the Canada Emergency Response Benefit (CERB) the 52 week period to accumulate insured hours is extended.

Canada Recovery Benefit

The CERB has now been replaced with the Canada Recovery Benefit (CRB). The CRB provides support to employed and self-employed individuals who are directly affected by COVID-19 and who are not entitled to Employment Insurance Benefits. Eligible individuals will receive $1,000 every two weeks. The benefit is taxable with taxes withheld prior to payment, resulting in a net payment of $900 for each two-week period.

To be eligible for the CRB you must either have lost your employment or self-employment for reasons related to COVID-19 or have had a 50% reduction in your average weekly income compared to the previous year due to COVID19. You cannot receive or apply for the Canada Recovery Sickness Benefit (CRSB) or the Canada Recovery Caregiving Benefit (CRCB) or be receiving or applying for short term disability benefits, workers compensation benefit or EI benefits. Other eligibility requirements include:

  • You must not be eligible for EI benefits.

  • You must live and have a home in Canada, but do not have to be a citizen or a permanent resident.

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

  • You must have earned at least $5,000 in 2019, 2020 or in the 12 months before the date you apply for CRB. That income can come from any of the following sources:

    • employment income on a gross basis;

    • net self-employment income, after deduction f expenses; or

    • maternity and parental benefits from EI.

  • You must not have quit your job or reduced your hours voluntarily on or after September 27, 2020 unless it was reasonable to do so.

  • You must be seeking work during the period, either as an employee or in self-employment.

  • You must not have turned down reasonable work during the 2-week period you’re applying for the CRB benefit for.

Canada Recovery Sickness Benefit (CRSB)

This benefit is for employed or self-employed individuals who are unable to work because they are sick or need to self-isolate due to COVID-19 or have an underlying health condition that puts them at heightened risk of getting COVID-19. The provided benefit is $500 per week, or $450 per week after taxes. The benefit is available for a total of two weeks and the program extends from September 27, 2020 to September 25, 2021. The eligibility requirements for the CRSB are as follows:

  • You must be unable to work at least 50% of your scheduled work week because you are self-isolating due to one of the following:

    • you are sick with COVID-19 or may have COVID-19;

    • you have been advised by either your employer, your doctor, a nurse practitioner, a person in authority, the government or the public health authority to self-isolate due to COVID-19;

    • you have an underlying health condition that puts you at greater risk of getting COVID-19 and have been advised to stay at home due to your health condition by a medical practitioner, a nurse practitioner, a person in authority, the government or your public health authority.

  • You cannot have applied for or received the CRB, CRCB, short term disability benefits, workers’ compensation benefits or EI during the same time period.

  • You must live and have a home in Canada but do not have to be a citizen or a permanent resident.

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

  • You must have earned at least $5,000 in 2019, 2020, or in the 12 months before the date that you applied from employment income, net self-employment income, maternity and parental benefits.

  • You cannot be receiving paid leave from your employer for the same period.

Canada Recovery Caregiving Benefit (CRCB)

This benefit is for employed and self-employed individuals who are unable to work because they must care for their child who is under the age of 12 or a family member who requires supervised care. The benefit is available if the dependent’s school, regular program or facility is closed or unavailable to them due to COVID-19, or because they are sick, self-isolating, or at risk of serious health complications due to COVID-19. The benefit provided is $500 per week and is available for a total of 26 weeks during the period between September 27, 2020 and September 25, 2021. The eligibility criteria is as follows:

  • You must be unable to work at least 50% of your scheduled work week because you are caring for a family member.

  • You are caring for your child under the age of 12 or a family member who requires supervised care because they are at home for one of the following reasons:

    • their school, daycare, day program, or care facility is closed or unavailable to them due to COVID-19;

    • their regular care services are unavailable due to COVID-19;

    • the person under your care is:

      • sick with COVID-19 or has symptoms of COVID-19;

      • have been advised by a medical professional that they are at risk of serious health complications if they get COVID-19;

      • have been advised by a medical practitioner, a nurse practitioner, a person in authority, the government or the public health authority to self-isolate due to COVID-19.

  • You cannot have applied for or be receiving during the same period benefits under the CRB or CRSB programs, short term disability benefits, workers’ compensation benefits or EI.

  • You must live and have a home in Canada, but do not have to be a citizen or a permanent resident.

  • You must be present in Canada.

  • You must be at least 15 years old.

  • You must have a valid social insurance number.

  • You must have earned at least $5,000 in 2019, 2020 or in the 12 months before the date you apply for the benefit from employment income, self-employment income and maternity and parental benefits.

  • You must be the only person in your household applying for the benefit for the week.

  • You must not be receiving paid leave from your employer for the same period.

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CKL BUSINESSES - NEW PROTECTION AGAINST LAWSUITS FOR CLIENTS/CUSTOMERS CONTRACTING COVID-19, BUT NOT YOUR EMPLOYEES

On November 17, 2020, the Ontario government passed a law conferring liability protection for businesses for COVID-19 issues, at least in part.

The new Supporting Ontario’s Recovery and Municipal Elections Act, 2020 may apply to any business concerned about liability if a customer or client is exposed or contracts COVID-19.

However, employers are NOT protected from claims from employees.

The legislation reads:

  • 2 (1) No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,

    • (a) at the relevant time, the person acted or made a good faith effort to act in accordance with,

      • (i) public health guidance relating to coronavirus (COVID-19) that applied to the person, and

      • (ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and

    • (b) the act or omission of the person does not constitute gross negligence.

In other words:

  • A business cannot be sued because its customer, client, etc gets COVID-19;

  • To enjoy the liability protection, the employer must have acted in “good faith” (even if not reasonable or objectively right) and not done something or fail to do something that amounts to “gross negligence” (not just everyday negligence, but really really really bad negligence);

  • This covers the time period since March 17, 2020 (St. Patrick’s Day)

  • The “good faith” acts are legit even if the public health guidance and laws at all 3 levels of government were inconsistent and kinda all over the map during 2020 (which they were)

BUT……….

Sub-section 4(2) of the legislation promulgates that the above section 2 liability protection does NOT apply to a cause of action brought by your team in their course of employment, including:

  • a worker

  • a worker’s survivor

  • an individual in the “performance of work” or “supply of services”, which would include independent contractors and freelancers.

So, effectively, an employer is not protected from claims by employees, contractors or freelancers related to “occupational disease” in the course of the worker’s employment or related to an occupational disease.

The specific workplaces impacted are those that are Schedule 1 and Schedule 2 employers under the Ontario workers’ compensation regime.

The new legislation does specifically declare that the Workplace Safety and Insurance Act and the usual workers’ compensation regime will continue to apply, but this act may permit employees to proceed on two fronts (workers’ compensation and civil), although sub-section 4(4) does state that any conflict between the two will default to the workers’ compensation law.

What Does This Mean?

Although the legislation is generally favourable to businesses in the CKL, the big carve out around employee claims means employers will likely continue to face the exposure of any potential COVID-19 related issues.

What do businesses do?

  • Always act in good faith

  • Stay informed of and strictly adhere to federal, provincial and municipal-level health-related directives, recommendations and advice

  • Limit exposure as much as possible in the workplace

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ANSWERS TO POPULAR COVID-19 QUESTIONS IN THE CKL (WORKPLACE AND EMPLOYMENT)

Answers to common questions during COVID-19 about workplaces and employment:

 

Question: If an employee chooses to work from home because of childcare, kids’ online learning/homeschooling, but their role is impossible to do at home, are we required to provide alternative work OR do they just go on leave?

 

Answer: There is no requirement for an employer to facilitate working from home. The employee would have job protection under the Infectious Disease Emergency Leave (“IDEL”). The employee may also be entitled to the Canada Recovery Caregiving Benefit or Canada Recovery Benefit.

 

Question: What if an employee works from home because of a medical condition, but we can’t ask for a doctor’s note?

 

Answer: If the employee requests an accommodation related to a protected ground under the Human Rights Code (i.e. disability in this case), then the employee has an obligation to cooperate in the accommodation process, and to assist the employer in understanding what accommodations may be appropriate in light of the employee’s restrictions and prognosis. An employee would be required to provide medical documentation in this scenario.

 

Question: If an employee has a pre-existing condition that puts them at a higher risk for contracting Covid-19, is it sufficient for the employer to provide the employee with PPE and ask them to come into work in the office?

 

Answer: An employer will need to understand the nature of the person’s restrictions by requesting a medical opinion. Providing PPE may be an appropriate accommodation (as part of the accommodation process), but an employer should arrive at an accommodation plan based on a medical opinion and a collaborative discussion with the employee. This reduces the risk of a human rights complaint (HRTO Application), and makes for a happier workplace.

 

Question: Staff are saying their fear of coming into work is related to taking public transit. What can we do?

Answer: Tough question and it depends. Typically an employer’s workplace health and safety obligations wouldn’t include an employee’s commute, but in Covid times this is murky. An employer and employee should discuss the employee’s concerns about public transit, and whether there are alternatives to minimize the risk (e.g. modified schedule for off-peak travel times and better social distancing, employer subsidies for vehicle gas, mileage, and/or parking, occasional work from home, etc.). After that conversation, if the employer’s reasonable precautionary measures don’t suffice and the employee believes they are still unable to get to work, IDEL may be the best alternative. Employers can also require that employees use any outstanding vacation time.

 

Question: What if an employee does not want to come to work, despite the employer’s extensive health and safety measures, and they don’t want to go on IDEL – the only option they will consider is working from home. What are the employer’s options?

 

Answer: Again, employers can require that the employee use any remaining vacation time, or deem the employee to be on IDEL.

In some cases it may be appropriate to assert that an employee has abandoned their job. The threshold for job abandonment is high and first requires a careful review of the facts and communications between the employer and employee.

 

Question: IDEL eligibility seems very broad. When would it not apply?

 

Answer: Where an employee’s situation does not fall within the extensive list of reasons an employee may take IDEL, then IDEL will not apply. Yes, IDEL now applies very broadly!

The ripple effect of shifting government restrictions and an approaching Canadian winter will be significant for many employers. We know the many related legalities and issues are top of mind for businesses. We invite you to join us for our next webinar, “WINTER IS COMING! Covering Your Employer A*$ as We Head Indoors” during which we will continue the conversation and delve into a) employee leaves, b) liabilities if your employee or customer gets sick, c) seasonal layoffs and terminations, and d) other Q&As

Credit: “Covid-19 2nd Wave Workplace Law Issues: Part 2”, Spring Law, M. Baizley and D. Murray, Nov. 12, 2020 (from Lexology.com).

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TORONTO TEMPORARILY BANNED FROM GETTING A DRIVER'S LICENSE IN LINDSAY

The Ontario government is cancelling all in-vehicle road tests in regions in the Grey (Lockdown) level, effective November 23, 2020. This currently applies to all road tests in the City of Toronto and Peel Region, including the Brampton, Downsview, Etobicoke, Metro East, Mississauga and Port Union DriveTest centres. This action is being taken to help prevent the spread of COVID-19.

Road test cancellations will be without penalty and Toronto or Peel Region residents may not book a road test at a DriveTest centre in another region.

The government has directed its driver testing services provider, DriveTest, to restrict residents in these regions from being able to take a road test at another DriveTest centre in a region with a lower COVID-19 level, effective November 30. If people living in a region in the Grey (Lockdown) level have booked a road test in a different region, it will need to be cancelled.

DriveTest centres in the Grey (Lockdown) level will be open for indoor services, such as knowledge tests, with capacity limits and COVID-19 preventative measures in place. 

DriveTest clients impacted by cancelled tests will receive a credit on the system and may rebook their tests when their region moves to a lower COVID-19 level.

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CKL BUSINESSES - UP TO $1000 AVAILABLE TO OFFSET THE COST OF PPE - PLUS POTENTIAL PROPERTY TAX AND ENERGY REBATES. WHAT YOU NEED TO KNOW TODAY.

Ontario's Main Street Relief Grant: PPE support

Help to small businesses is available from the Ontario government for the unexpected costs of PPE.

Eligibility

To be eligible, your business must have two to nine employees and be in one of the following sectors:

  • retail

  • accommodation and food services

  • repair and maintenance

  • personal and laundry services

What you’ll get

Eligible small businesses will get one-time grants of up to $1,000.

What you’ll need to apply

You will need to submit receipts or proof of costs for PPE purchased since March 17, 2020. This includes:

  • gloves, gowns, face shields, eye protection, masks, sanitizer, sanitizing wipes

  • thermometers, temperature monitors or cameras

  • physical changes, including the installation of hand sanitizer stations and plexiglass dividers

  • signs to guide or inform customers and employees

Property tax and energy bill rebates

Businesses that were required to shut down or significantly restrict services due to provincial public health measures (in areas with modified Stage 2 restrictions or categorized as control or lockdown) can apply for rebates, provided in the form of grants, to help with their fixed costs.

Eligibility

Support is available for businesses that were required to close or significantly restrict services as a result of provincial modified Stage 2 public health measures announced on October 9, 2020. Going forward, areas categorized as control or lockdown qualify.

Types of businesses that are eligible for support include:

  • restaurants and bars

  • gyms, facilities for indoor sports and recreational fitness activities

  • performing arts and cinemas

  • bingo halls, gaming establishments, casinos, conference centres and convention centres

  • community centres, multi-purpose facilities, and museums

  • personal care services (with the exception of oxygen bars)

  • racing venues

  • meeting or event space

  • in-person teaching and instruction

Additional businesses that would become eligible if a region is in lockdown include:

  • retail required to close for in-person shopping

  • shopping malls

  • personal services

  • driving instruction

  • tour and guide services

  • photography services

  • campgrounds

Businesses will not be eligible if they are:

  • located outside provincial modified Stage 2 or control and lockdown regions

  • within the areas subject to public health restrictions, but were not required to close or significantly restrict services

  • owned by the federal, provincial, or a municipal government, or by a person holding federal or provincial office

What you’ll get

Eligible businesses could get rebates for:

  • municipal and education property taxes

  • energy costs, including electricity and natural gas (or where natural gas is not available, propane and heating oil)

Funding will cover the entire length of time that regionally targeted public health restrictions are in place.

Most businesses can expect to receive their rebate payments within a few weeks of submitting a complete application.

What you’ll need to apply

To apply, you will have to submit proof of costs.

For property tax rebates, this includes your property tax bills (or proof of costs associated with property taxes).

For energy cost rebates, this includes a digital copy of the first energy bill (including electricity, natural gas, propane or other) you received on or after the day Stage 2 restrictions were put in place in your region. You can also submit other energy bills if your business is heated by propane or heating oil.

How to apply

Fill out an online application to apply for PPE support, property tax rebates or energy cost rebates.

You will be able to complete a single form to apply for any – or all – of these programs.

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CKL BUSINESSES - THE NEW FEDERAL (COMMERCIAL) RENT SUBSIDY - HOW TO QUALIFY AND APPLY; WHAT YOU'LL GET. WHAT YOU NEED TO KNOW TODAY.

 

Canada Emergency Rent Subsidy (CERS)

CKL's businessesnon-profit organizations, or charities who have seen a drop in revenue due to the COVID-19 pandemic may be eligible for a subsidy to cover part of their commercial rent or property expenses, starting on September 27, 2020, until June 2021.

This subsidy will provide payments directly to qualifying renters and property owners, without requiring the participation of landlords.

If you are eligible for the base subsidy, you may also be eligible for lockdown support if your business location is significantly affected by a public health order for a week or more.

Eligibility criteria

To be eligible to receive the rent subsidy, you must meet all four of the following criteria – you:

1.Meet at least one of these conditions:

1. You had a CRA business number on September 27, 2020

2. You had a payroll account on March 15, 2020, or another person or partnership made payroll remittances on your behalf

3. You purchased the business assets of another person or partnership who meets condition 2 above, and have made an election under the special asset acquisition rules
These special asset acquisition rules are the same for the Canada Emergency Wage Subsidy (CEWS).

4. You meet other prescribed conditions that might be introduced
Note: there are no prescribed conditions at this time

If you don’t have a business number but you qualify under condition b or c, you will need to set one up before you are able to apply for CERS.

You do not need a payroll account to apply for CERS.

2.You are an eligible business, charity, or non-profit (eligible entity). 

Types of businesses, charities, or non-profits (entities) that are eligible for CERS

  • individuals (other than a trust)

  • corporations (or trusts) that are not exempt from income tax (Part I of the Income Tax Act)

  • the following persons that are exempt from income tax (Part I of the Income Tax Act):

    • non-profit organizations

    • agricultural organizations

    • boards of trade

    • chambers of commerce

    • non-profit corporations for scientific research and experimental development

    • labour organizations or societies

    • benevolent or fraternal benefit societies or orders

  • registered charities

  • partnerships consisting of eligible employers (including partnerships where at least 50% of the interests in the partnership are held by eligible employers)

  • the following prescribed organizations:

    • certain Indigenous government-owned corporations that carry on a business

    • partnerships consisting of eligible employers and certain Indigenous governments

    • registered Canadian amateur athletic associations

    • registered journalism organizations

    • private schools or private colleges, and

    • partnerships consisting of eligible employers (including partnerships where at least 50% of the interests in the partnership are held by eligible employers)

Public institutions are not eligible for the subsidy. This includes municipalities and local governments, Crown corporations, public universities, colleges and schools, and hospitals.

If your business, charity, or non-profit is related to another eligible entity, you may be considered an "affiliated entity".

This may affect your calculations for the subsidy.

If your business, charity, or non-profit is related to another eligible entity, you may be considered an "affiliated entity".

This may affect your calculations for the subsidy.

3.Experienced a drop in revenue

Your drop in revenue is calculated by comparing your eligible revenue during the reference period with your eligible revenue from a previous period (baseline revenue).

There is no minimum revenue drop required to qualify for the subsidy. The rate your revenue has dropped is only used to calculate how much subsidy you receive for these periods.

Calculate your revenue drop online

After you have read about the expenses you can claim, you can use the online calculator to find your revenue drop while calculating how much subsidy you may receive.

A CERS application must be filed no later than 180 days after the end of a claim period.

4.Have eligible expenses

To apply for CERS, you must have a qualifying property. Only certain expenses you pay for qualifying properties are eligible for CERS.

How to apply:

For information about claim periods, including for between November 22 to December 19, 2020, click here: https://www.canada.ca/en/revenue-agency/services/subsidy/emergency-rent-subsidy/cers-periods-apply.html

The CERS covers a portion of eligible expenses in respect of a claim period for each qualifying property, subject to certain maximums. The CERS is calculated on a property by property basis.

Qualifying property

Properties (business locations) that do qualify include any "real or immovable property" (buildings or land) in Canada that your business or organization:

  • owns or rents, and

  • uses in the course of your ordinary business activities

Properties that do not qualify, include:

  • your home, cottage, or other residence used by you, your family members, or other non-arm’s-length persons

  • any properties you own that are primarily used to earn rental income from arm’s-length parties

Eligible expenses

For each claim period, you can claim eligible expenses up to a maximum of:

  • $75,000 per business location (base and top-up)

  • $300,000 in total for all locations (including any amounts claimed by affiliated businesses)

    • applies to the base subsidy only

    • there is no maximum for the top-up subsidy

Eligibility criteria for expenses

There are a few criteria expenses need to meet, in order to be eligible to be included in your claim for a particular claim period.

  • Only amounts paid or payable to an arm’s-length party can be included

  • The expense must be in respect of the claim period

  • The expense must be paid or payable under a written agreement in place before October 9, 2020 (or a renewal on substantially similar terms or assignment of such an agreement)

If you have not paid the amounts due for your eligible expenses yet, you must attest (confirm) that these amounts will be paid within 60 days of receiving your rent subsidy payment.

You cannot claim expenses that were paid or payable:

  • to non-arm’s-length entities

  • for a timeframe that falls outside of the claim period you are applying for

If you rent the qualifying property, your eligible expenses are:

  • Rent (including rent based on a percentage of sales, profit or similar criteria)

  • Amounts required to be paid or payable by you under a net lease (either to the lessor or a third party). Includes:

    • base rent

    • regular payments for customary operating expenses

    • property and similar taxes

    • regular payments to the lessor for customary ancillary services

You cannot include amounts paid or payable for:

  • sales taxes (such as GST/HST and provincial sales taxes)

  • damages

  • interest or penalties on unpaid amounts

  • other special amounts

If your landlord received an amount under the Canada Emergency Commercial Rent Assistance (CECRA) program and they applied the amount to your future rent payments, you can still claim the full rent amount in the current period.

If you own the qualifying property, your eligible expenses are:

  • Property and similar taxes

    • Includes school taxes and municipal taxes, if these are part of your property tax assessment

  • Property insurance

  • Interest on commercial mortgages for the purpose of purchasing real property

    • Your mortgage amount cannot exceed the lesser of: the lowest principal amount secured by one or more mortgages on the property at any time it was acquired; OR the cost amount of the property

Expenses that are not eligible include:

  • payments between non-arm’s-length entities

  • amounts that were paid or payable for a time that fall outside of the claim period

If you earned any revenue from sub-leasing space on the property to arm’s-length parties, you must subtract that revenue from your eligible expenses.

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COVID - LANDLORDS CANNOT INTERFERE WITH YOUR REASONABLE USE AND ENJOYMENT OF YOUR RENTAL PROPERTY.

Convicted: 1507418 Ontario Inc.

Location: Toronto

Description of Offence: Knowingly interfering with a tenant's reasonable enjoyment of a rental unit

Date of Offence: October 26, 2017 - October 5, 2018

Date of Conviction: November 13, 2020

Penalty Imposed:

  • Following a guilty plea, 1507418 Inc. was fined $2,000 in Toronto by Justice of the Peace Tina Wassenaar.
  • The court also imposed a 25 per cent victim fine surcharge ($500) as required by the Provincial Offences Act.

Background:

  • 1507418 Ontario Inc. is the landlord of a rental property in Toronto.
  • In late 2017, a fire broke out in the property. The tenant was led to believe that the property needed major renovations and he had to move out for a while. He left his belongings in the property, expecting to later move back in. At some point in 2018 the tenant no longer had access to the unit.
  • The tenant initiated proceedings at the Landlord and Tenant Board. As a result of those proceedings, 1507418 Ontario Inc. paid the tenant $3,500 in compensation and gave the tenant access to his belongings.
  • Under the Residential Tenancies Act, a landlord is not permitted to interfere with a tenant's reasonable enjoyment of a rental unit.
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NEW MASKING IN CKL'S WORKPLACES AND BUSINESSES!!!! MUST BE WORN BY EVERYBODY IF NO SOCIAL DISTANCE OR BARRIER.

CKL remains in the Green zone (Standard Measures), according to the Ontario government.

However, very recently the Green status was changed.

Previously, in a workplace, for example, masks were not required among staff and workers not within a public area of the business or workplace.

Now, however, that has changed.

Now, if staff/workers are performing tasks indoors that require them to be less than two metres from an unmasked or improperly masked individual without a barrier (e.g. Plexiglass, partition, wall), appropriate Personal Protective Equipment must be worn, including proper protection for eyes, nose and mouth.

At a minimum, this would include a medical mask and eye protection.  

So, whether in a “public area” or not within your workplace or business, EVERYONE must now be wearing masks when within six feet of one another.

This may mean re-arranging work stations, consider returning to work-from-home arrangements and changes to WFH protocols.

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IS SOMEONE CASTING YOU FASLELY IN THE PUBLIC EYE, ONLINE OR OTHERWISE? YOU MAY BE ENTITLED TO DAMAGES.

In Ontario, you cannot cast me falsely in the public eye, online or otherwise.

Doing so is considered a form of invasion of my privacy and, if online, cyberbullying. 

In this family law case, a spouse claimed intrusion on seclusion and invasion of privacy, because the other spouse had posted YouTube videos of his interactions with the children at issue, despite Court orders made previously prohibiting him from doing so.

The offending spouse had also created cybercampaigns against the other spouse, her family, a lawyer involved and a judge.

The father was also accused of mocking one of his children with a neurological disorder.

Said the Court:

“Children are particularly vulnerable to the online postings of a parent which expose the intimacy of a child’s life which only a parent should have access to…….” and “Public posting of recorded in-person and Skype access visits with children, photographs of parental moments, and written and video commentary about the children in a cyberbullying campaign directed to undermining the spouse in family law litigation, viewed objectively, is an offensive intrusion on the privacy of the child.” 

What does this mean? Ontario now allows a claim for breach of privacy for publicly placing a person in false light – effectively, it allows a person to attempt to control he or she is presented, or identified, online.  In this case, the focus was on the children of the marriage, but the same principles apply to everyone else.

Prior to this case, Ontario has recognized the following types of breach of privacy claims available to us:

1. Intrusion upon another’s seclusion or solitude, or into his or her private affairs;

2. Public disclosure of embarrassing private facts about the other person;

3. Publicity which places the other person in a false light in the public eye; and

4. Appropriation, for the defendant's advantage, of the other party’s name or likeness.

The court ordered the father to pay damages of $100,000  on the tort of invasion of privacy (false light and public disclosure of private facts), in addition to other payments of post-separation adjustment, spousal support, child support, damages for mental suffering and punitive damages.

The Court did not require that proof of defamation be established; rather, the false light must be highly offensive to a reasonable person and the perpetrator must have had knowledge of or acted in reckless disregard as to the falsity of what he or she was posting.

Businesses may also be impacted by this ‘false light’ privacy claim – they may be exposed to claims of vicarious liability for so-called “deep fakes,” employee misconduct, misleading ads or social media marketing, for example — and there is no requirement to prove actual malice or economic harm.

In other words, corporate announcements, internal investigative outcomes, marketing, advertising, financial reporting, etc., may be exposed to scrutiny on how they portray a person – they cannot do so in a “false light”. This applies not only online, but globally. 

Basically, it’s a recklessness standard – specific malice or ill intent need not be proved to be successful. 

This new development empowers a person to be better able to control his or her information and data, particularly in the public forum. 

So far, there has been no floodgate opened in Ontario in family law cases incorporating this new type of claim, especially if there has been online activity in the case, as there often seems to be these days.

However, most litigants and their counsel will be sure, especially in family law and employment cases, will more certainly investigate any online evidence from any available sources.

The Case:

Yenovkian v. Gulian, 2019 ONSC 7279

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COMPROMISING OR INTIMATE PICS OF YOU POSTED ONLINE WITHOUT YOUR CONSENT? AS MY LAWYER DAD USED TO SAY, "SUE THE BASTARDS".

Publishing online very personal or intimate information or images of another may now be a very costly mistake. 

Not long ago the Ontario Court granted, in a case called Jane Doe 464533 (the Plaintiff’s name cannot be disclosed), damages and costs totaling $141,000, plus an order for the offending Defendant to destroy any video or images he retains of the Plaintiff and prohibiting him from sharing any intimate images of her. He was also ordered not to communicate with the Plaintiff or any of her family.

The Plaintiff was a young woman in her late teens. Due to pressure from her ex-boyfriend, she agreed to share with him a sexually explicit video of herself. He promised he would not share it with anyone else. However, he subsequently posted the intimate video of her on a pornography Web site without her knowledge or consent. The police refused to criminally pursue the matter.

The Plaintiff eventually sued him for breach of her privacy and, specifically, for his public disclosure of embarrassing private information about her, after attempting to settle the matter with lawyers involved. The Defendant boyfriend did not ultimately defend the lawsuit, so the Court decided the case and awarded damages to the Plaintiff without a challenge to the Plaintiff’s claim. However, the Court reviewed the law and provided a well-reasoned, thorough decision, even though the Defendant did not defend the claim. The case is subject to a publication ban of the name of the Plaintiff.

The Plaintiff relied on fairly recent, emerging cases in Ontario recognizing an expanding ability for a person to sue another directly for breach of privacy, or for “intrusion upon seclusion”.

The Court awarded the Plaintiff $100,000 in damages (noting that she had limited her claim to this maximum amount in the lawsuit). These damages are much higher than the $20,000 “cap” that had previously been established by Ontario’s Court of Appeal in the earlier cases for intrusion upon seclusion.

Therefore, this case expands on privacy protection in Ontario and allows a person to civilly claim and be awarded significant damages when that person’s personal/private information is published online, provided this test is met.

To succeed, it must be proved that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.

Undoubtedly the law of privacy in Ontario continues to grow and expand. More cases will be needed to clarify and further develop this law, but this case clearly indicates the Court’s willingness to do so, including for “public disclosure of embarrassing private facts”. 

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WHAT IF AN EMPLOYEE TESTS POSITIVE FOR THE VIRUS? STEP-BY-STEP ANSWERS.

What should you do if an employee tests positive for the virus?

[1] the infected employee should not be permitted to return to the workplace until they are clear of COVID-19;

[2] immediately contact the local health unit for guidance and to initiate contact tracing;

[3] in most cases, you do not need to shut down your entire workplace.  Rather, you can close off any areas that were used for prolonged periods of time by the sick person, and then (ideally after waiting 24 hours) thoroughly clean and disinfect those areas.

[4] take additional steps to determine which other employees had worked closely with the infected person and inform them of their exposure risk.  Employers should, as much as possible, maintain confidentiality about the identity of the specific person who was infected.  For employees who were exposed to the infected person for prolonged periods of time, ask them to self-isolate and stay home/work remotely for 14 days to reduce the risk of the infection spreading in the workplace, but seek the guidance of the local health unit before doing so. 

The above steps should be taken promptly once an employer is notified of a COVID-19 infection in their workplace.   

The physical layout of each workplace is different.  Each workplace may also have a different level of interaction between employees in the workplace.  The infected employee may not have attended the workplace often before testing positive.  All of these factors will be relevant to determining which employees worked closely with, or had prolonged exposure to, an infected employee.  

To address some of these issues proactively, larger workplaces can separate employees into cohorts or working groups to reduce the chance of the virus spreading and to make exposures easier to manage.   

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POTENTIALLY VIOLATING ONTARIO'S EMPLOYMENT STANDARDS ACT INVALIDATES AN EMPLOYMENT CONTRACT - PERIOD.

In this case, a “construction” employee had signed an employment agreement purporting to minimize the employee’s entitlements upon termination to only those required by the Ontario Employment Standards Act, 2000 (the “ESA”).

However, the Court held the employment contract to be invalid, thereby awarding common law reasonable notice to the employee.

The fatal error by the employer was disentitling the employee in the contract to potential rights under the ESA, even if they currently were not operative.

In other words, potential violation of an employment contract with the ESA will still invalidate the contract, even if it may not at the time of signing (i.e., “construction” workers, which may not be entitled to “termination pay” under the ESA).

Of note, the Court explained:  

  • The common law principle of termination of employment on reasonable notice is a presumption. 

  • The presumption is only rebuttable if an employment agreement clearly specifies another period of notice.

  • The employment agreement is only enforceable if it complies with the minimum employment standards in the ESA. If it does not, the presumption is not rebutted and the employee is entitled to reasonable notice of termination.

  • Some types of employees are not protected by the ESA, including “any prescribed individuals.” (s. 3(5), ESA)

  • However, if an employee has two or more roles in their employment, and only one is not protected by the ESA, the employee will continue to be protected with respect to that other role. (s. 3(6), ESA)

  • Section 2(1) 9 of Regulation 288/01 under the ESA states that construction employees “are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination or termination pay under Part XV of the Act.”

The court emphasized that since Rutledge was a construction employee throughout his employment, notice of termination (ss. 54-60, ESA) and termination pay (ss. 61-62, ESA) were the only employment standards that did not apply to him. The court said: 

The regulation does not flatly disentitle Rutledge to the protection of the entire ESA as is the case for some of the other occupations listed in s. 3(5) of the ESA. Rutledge continues to be afforded the protection of all other employment standards set out in the ESA, unless otherwise specifically excluded by other legislation. Accordingly, if any wording of an employment contract purports to deny Rutledge those other employment standards, then those provisions are unenforceable. (para. 11)

The court concluded that Rutledge’s employment contract contained the following two errors that rendered the termination provision unenforceable:

[1] An employee cannot contract out of a protected employment standard under the ESA even if it does not yet apply to them.  It is enough if the provision in the contract would potentially violate the ESA at any date after hiring.  If Rutledge’s position changed to something other than a construction employee, his employment contract would deny him his right to benefits during his notice period, a right protected by the ESA.  Although the employment contract stated that Rutledge was employed as an apprentice in the construction industry, “it does not explicitly state that this applies only to him while occupied as a construction employee and that it would be of no force or effect if his position changed.” (para. 15)

[2] Construction employees are entitled to the employment standards guaranteed upon their severance (ss. 63-66, ESA).  “If Canaan grew in size, employing more than 50 employees and then discontinued its business, or else had a payroll more than $2.5 million, Rutledge would be entitled to severance pay, irrespective of his job description.  The Employment Contract clearly disentitles Rutledge to these employment standards.” (para. 16)

The Case:

Rutledge v. Canaan Construction Inc., 2020 ONSC 4246 (CanLII)

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CKL REMAINS COVID-19 "GREEN" - A REFRESHER ON THE RESTRICTIONS IN PLACE FOR THE GENERAL PUBLIC

Currently in the “regional” COVID-19 approach by the Ontario government, the City of Kawartha Lakes remains in the green, “PREVENT (Standard Measures”).

What does that mean for the general public, in addition to the usual preventative measures, like proper hand hygiene?

It means this:

• Gathering limit for select organized public events and social gatherings (e.g., private gatherings at home, in parks, etc., barbeques):  

  • 10 people indoors

  • 25 people outdoors

• Gathering limit for organized public events and social gatherings:

  • 50 people indoors

  • 100 people outdoors

• Gathering limit for religious services, rites or ceremonies, including weddings and funerals:

  • 30% capacity of the particular room, subject to physical distancing, indoors

  • 100 people, subject to physical distancing, outdoors

• Requirement for workplace screening

• Requirement for face coverings at indoor workplaces and public spaces, with limited exemptions

• Restrict non-essential travel from areas of high-transmission to areas of low transmission

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STOKE THAT FIRE, BUT KNOW YOUR RIGHTS ABOUT FIRE LOSS. PREVENTION IS KEY.

The cool fall air has finally arrived.  Cords of wood are being delivered and wood stoves are being fired up.  Gas fireplaces are being flicked on.    

The best way to prevent injury and loss from fire is to be prepared.  But when you have been affected by fire, you need to know your legal rights and options for seeking compensation.

If you have suffered damage to your home or property due to fire or smoke damage, you need to be proactive in dealing with your homeowners insurance company to make a fire insurance claim.  Call your insurance agent or company immediately.

Fire loss claims are complex and time-consuming. You will be required to submit a “proof of loss claim” as soon as possible, with a time limit in which to do so under your policy.  If you are displaced from your home, you may claim living expenses.  You may have the option to repair or rebuild your home and it is important to have the right appraisers and contractors working for you. Your insurer may deny your claim based on misrepresentation on your application, failure to advise your insurer of a change of use in the property or that a renovation has been completed. You may need to resort to legal action to obtain compensation from your insurer.

Damage to homes and personal belongings are not the only devastating effects of a fire. On average, 19 children aged 14 and under are killed by fire or smoke each year in Canada and nearly 600 are hospitalized. Fire victims suffer physical pain and emotional trauma. The recovery process for burn injuries can be excruciating and lengthy.

You may have the right to bring a claim for damages against a negligent party who caused a fire, including property designers, owners, managers, landlords and product manufacturers.  A fire can be caused by a failure to maintain or replace wiring, improper storage of flammable materials, lack of or defective fire and CO2 detectors, obstruction of fire exits, non-compliant building code construction, exploding propane or gas tanks, etc.  Also, the origin of a fire may be the result of defective products, including electrical equipment, wiring, circuits or heaters.

And what about your duties and obligations?  It’s the law in Ontario for homeowners to have working smoke alarms on every storey of a home and outside all sleeping areas. Landlords are responsible for ensuring their rental properties comply with the law.  Tenants of rental properties who do not have the required number of smoke alarms should contact their landlord immediately; it is also against the law for tenants to remove the batteries or tamper with an alarm in any way.  Failure to comply with the Fire Code smoke alarm requirements could result in a ticket for $235 or a fine of up to $50,000 for individuals or $100,000 for corporations.

Ontario fire statistics reveal that in about 50 per cent of fatal home fires, the victims had no smoke alarm warning.  Smoke alarms are a proven way to prevent injuries and death from fires - see more here.

The Ontario Ministry of Community Safety & Correctional Services provides numerous resources (click here) about keeping your loved ones and property safe from fire.

Take some time to get prepared.

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MARRIED V. COMMON LAW SPOUSES - KNOW THE DIFFERENCE FOR RELATIONSHIP BREAKDOWNS AND DEATH.

It can make a big difference, legally, whether you are married or “common law” if you and your partner separate, or one of you unfortunately passes away.

In Ontario, common law spouses are treated differently than married spouses, at law, if there is a separation or a death during the relationship.

For example, did you know that:

  • unlike married spouses, common law spouses have no automatic rights upon the death of a spouse who does not leave a will, while married spouses are statutorily entitled to a receive a “preferential share” and additional percentage of a predeceasing married spouse’s estate on an intestacy (i.e., dying with no valid will in effect);

  • divorced spouses are treated the same as common law spouses on the death of the other partner - no 'preferential share';

  • married spouses have the right to elect for an equalization of net family property, pursuant to Ontario’s Family Law Act on death of the other married spouse, unlike common law spouses who have no such rights on death of the other;

  • marriage automatically revokes a will (unless executed in contemplation of the marriage), while enjoying a common law relationship has no such effect; and

  • a separation (unless there is a valid separation agreement directly addressing the issues) does not revoke a will or any gifts made to a separated spouse, but gifts made under a pre-separation will to a divorced spouse are generally revoked by statute and the divorced spouse is regarded legally as having predeceased the spouse who dies.

So, there are very important differences between married and common law spouses in the event of a relationship breakdown or the death of one of the partners.

It is important to know your rights in your relationship, which can also be altered by a solid domestic contract, including to avoid potentially harsh consequences to a surviving common law spouse, who may be left a legacy of litigation, unintentionally.  

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TAKING CARE OF AN ADULT FAMILY MEMBER DURING THE PANDEMIC? BE MINDFUL - YOU MAY HAVE BECOME A "FIDUCIARY" - A HIGHER LEGAL EXPECTATION MAY APPLY.

Caregivers are increasingly being held to a higher legal standard. They are now generally regarded as a “fiduciary” to the person to whom they provide care. A fiduciary has higher obligations legally – caregivers are now in that category. 

Historically there are general categories of fiduciary relationships that have evolved in Ontario. They include: agent to principal; lawyer to client; trustee to beneficiary; business partner to partner; and, director to corporation.

Generally, a fiduciary obligation on a person will be imposed when:

  1. The fiduciary has scope for the exercise of some discretion or power;

  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and

  3. The beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the discretion or power.

Vulnerability of the other person is often a key consideration.

This is important if a caregiver, for example (which may include a family member) is added to a bank account of a person in need of care, handles finances for a parent or generally provide financial assistance to, for example, an elderly parent or disabled person.

A recent case in British Columbia illustrates this trend in the law: Reeves v. Dean.

In this case, the caregiver was found to have misappropriated money from a bank account to which the caregiver was added by the person in need of the caregiver services. 

There are special remedies available from the Court when it is found that a fiduciary has acted unlawfully. They include: a constructive trust, accounting for profits, compensation to to the aggreived person (to restore them to their former position) and others. Generally, the remedies are identified by the Supreme Court of Canada in Frame v. Smith (1987).

Therefore, if you act as a caregiver, be very mindful of your higher duty.

On the other hand, if you receive, or you know someone who receives, caregiver services (particularly if they related to handling personal finances), be sure to speak to a qualified lawyer if you suspect there has potentially been wrongdoing by the caregiver. 

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NEIGHBOUR DISPUTES DURING COVID-19 - DON'T IRRITATE THE COURT - A POX ON BOTH YOUR HOUSES!

The Dispute:

Mutual allegations about by neighbours about family pets, profanity, disturbing the peace and misbehaviour generally. An injunction was sought.

The Outcome:

A pox on both their houses. The Court dismissed all of the claims and, effectively, admonished both sides for usurping the limited resources of the judiciary as a forum for their Hatfield-McCoy-style dispute. Both sides, which obviously were sufficiently wealthy to fund this litigation, got no costs.

Here is the actual decision:

ENDORSEMENT

[1]               The parties to this action live across the road from each other in Toronto’s tony Forest Hill neighbourhood. The video footage played at the hearing shows that both families live in stately houses on a well-manicured, picturesque street. They have numerous high end automobiles parked outside their homes.

[2]               The Plaintiff, John Morland-Jones, is an oil company executive; the Defendant, Gary Taerk, is a psychiatrist. They do not seem to like each other, and neither do their respective spouses, the Plaintiff, Paris Morland-Jones and the Defendant, Audrey Taerk.

[3]               In this motion, the Plaintiffs seek various forms of injunctive relief on an interlocutory basis. It all flows from the Plaintiffs’ allegation that the Defendants have been misbehaving and disturbing their peaceful life in this leafy corner of paradise.

[4]               As counsel for the Plaintiffs explains it, the Plaintiffs’ house is ringed with eleven video cameras for security purposes. Two of them are aimed directly at the Defendants’ front door and driveway. They record, 24/7/365, every movement in and out of the Defendants’ home. The Plaintiffs can see when Ms. Taerk leaves to go shopping, they can study what the Defendants are wearing every morning when they pick up their newspaper on the front step, they have a videotaped record of when Mr. Taerk goes to work or walks his dog, etc.

[5]               Nothing that the Defendants do escapes the Plaintiffs’ video camera lens. The cameras trained on the Defendants’ house may or may not provide the Plaintiffs with a sense of security, but as demonstrated by the dozen or so videos produced in this motion, the Plaintiff’s “security system” is as much a sword as it is a shield.

[6]               The hearing before me started off with counsel for the Plaintiffs playing a short excerpt from security footage shot by the Plaintiffs several years ago, in which Ms. Taerk is seen performing a “poop and scoop” after a dog did its business on her front lawn. The Plaintiffs’ security camera shows her crossing the street with the plastic bag-full in hand, and then walking toward the Plaintiffs’ driveway where the garbage cans were out for collection. Although the impugned deed actually takes place off camera, Ms. Taerk can be seen moments later returning to her side of the street empty-handed.

[7]               Apparently, much to the consternation of the Plaintiffs, she deposited the goods in the Plaintiffs’ garbage can. In doing so, she failed to walk to the back of her house to place it in her own receptacle like a truly good neighbour would do.

[8]               The “dog feces incident”, as counsel for the Plaintiffs calls it, is a high point of this claim. At the hearing, it was followed by counsel’s description of a cease and desist letter sent to the Defendants in 2008 by a lawyer then representing the Plaintiffs, which describes what is now referred to by counsel as the “dog urination issue”. This letter enclosed photographs – apparently stills taken from the Plaintiffs’ non-stop video footage – documenting Mr. Taerk walking his dog and occasionally allowing it to lift its leg in a canine way next to the bushes lining the Plaintiffs’ lawn.

[9]               The Defendants did not respond to this erudite piece of legal correspondence. Counsel for the Plaintiffs characterizes this silence as an “admission”, although it is unclear just what legal wrong was being admitted to.

[10]           And it goes downhill from there. For example, the Defendants are accused of occasionally parking one of their cars on the street in a legal parking spot in front of the Plaintiff’s home. The Defendants do this now and then, according to the Plaintiffs, just to annoy them. This accusation was admittedly pressed rather sheepishly by Plaintiffs’ counsel, since the Plaintiffs have conceded that they park one of their own cars in front of the Defendants’ home every day. Indeed, the Plaintiffs cannot help but concede that fact, since their own non-stop video surveillance of the Defendant’s house shows the Plaintiff’s car sitting there day after day.

[11]           The Plaintiffs also complain quite vociferously about the fact that the Defendants – in particular Ms. Taerk – are in the habit of sometimes standing in their own driveway and taking cell phone pictures of the Plaintiffs’ house across the street. Apparently, the Plaintiffs, who keep two video cameras trained on the Defendants’ house night and day, do not like their own house being the target of Ms. Taerk’s occasional point-and-click.

[12]           The Plaintiffs also accuse Ms. Taerk of taking pictures of the Plaintiffs’ housekeeper taking their dog for its daily constitutional. The video tapes show the housekeeper leading the dog to what they describe as its favorite grassy spot in a parkette only feet from the Defendants’ front lawn. The housekeeper has deposed that she goes there with the dog every day. Ms. Taerk has made of show of documenting that activity.

[13]           Another complaint submitted by the Plaintiffs is that Mr. Taerk has taken up the habit of walking by their house with a voice recorder in hand, trying to catch some of the verbal exchanges between the parties. According to Mr. Taerk’s affidavit, Ms. Morland-Jones occasionally shouts profanity or other insults at him when he is on his walks, so he now only ventures onto the road armed with his dictaphone. He tends to hold it at the ready in his right hand as he walks rather than holstering it on his hip. 

[14]           The controversy has even extended to other lucky residents. The Plaintiffs summoned under Rule 39.03 no less than four of their neighbours to testify on the pending motion, no doubt endearing themselves to all of them. One witness, a lawyer, was asked to confirm that he had warned the Plaintiffs about the Defendants when they first moved into the neighbourhood; he responded that can recall saying no such thing. Another witness, a professor, was asked to confirm that she sold her house for below market value just to get away from the Defendants; she said she did not.

[15]           Each of the summonsed witnesses was asked by Plaintiffs’ counsel to confirm the affidavit evidence sworn by Mr. Morland-Jones that the Defendants are difficult people. None of them seemed to want to do that, although one of them did recount that the Defendants had objected to a renovation permit that the Plaintiffs once sought, and that the matter had proceeded to the Ontario Municipal Board. Another of the neighbours was asked to recount the rude nicknames that some neighbourhood children had given Ms. Taerk when she was a substitute teacher at a nearby school.

[16]           In what is perhaps the piece de resistance of the claim, the Plaintiffs allege that the Defendants – again focusing primarily on Ms. Taerk – sometimes stand in their own driveway or elsewhere on their property and look at the Plaintiffs’ house. One of the video exhibits shows Ms. Taerk doing just that, casting her gaze from her own property across the street and resting her eyes on the Plaintiffs’ abode for a full 25 seconds. There is no denying that Ms. Taerk is guilty as charged. The camera doesn’t lie.

[17]           For their part, the Defendants have not been entirely innocent. They appear to have learned that the Plaintiffs – and especially Ms. Morland-Jones – have certain sensitivities, and they seem to relish playing on those sensitivities. They realize, for example, that Ms. Morland-Jones does not enjoy having her house photographed, and so Ms. Taerk tends to take her cell phone out and point it at the Plaintiffs’ house precisely when Ms. Morland-Jones can see her doing it.

[18]           Ms. Taerk has testified that, in fact, she has not taken any pictures but rather has been pretending to do so by simply pointing her phone and clicking it randomly. Ms. Taerk presents this as a justification for not producing any photographs in the evidentiary record, but of course the explanation reflects more malevolence than what it attempts to excuse. In any case, Ms. Morland-Jones can be counted on to respond as predicted. It is a repeated form of hijinks that could, if a sponsor were found, be broadcast and screened weekly, although probably limited to the cable channels high up in the 300’s.

[19]           The same is true with Mr. Taerk’s voice recording technique. Although Mr. Taerk may have started carrying this device in order to record Ms. Morland-Jones’ spontaneous eruptions, cause and effect have now been reversed. Mr. Taerk appears to enjoy walking by the Plaintiffs’ residence with his dictaphone conspicuously raised to shoulder level when he sees Ms. Morland-Jones in her garden, which then prompts the very outbursts that he was at first reacting to. On one of the tapes, Ms. Taerk can actually be heard prompting Mr. Taerk to go out and goad Ms. Morland-Jones in this fashion.

[20]           The Plaintiffs’ teenage son has testified that when he was 10 years old, Ms. Taerk instructed him to stay off the public parkette adjacent to her home, saying that it belongs to the Defendants. He also deposed that when he was 16 the Defendants appeared to be photographing him one day as he sat in a parked car in front of his house – or, more accurately, just across from the Defendants’ house – with his girlfriend. He speculated, but could not entirely recall, precisely what he and the young woman were doing in the car at that moment.

[21]           The antics have only gotten worse since then. Ms. Morland-Jones has shouted at the Taerks from her front yard, and Ms. Taerk has given Ms. Morland-Jones “the finger” from her front driveway. The Defendants have apparently called the police on the Plaintiffs numerous times in recent years; the Plaintiffs have responded by retaining a criminal lawyer to attempt to have a peace bond issued that would restrict the Defendants’ movements. All of that has been to no avail.

[22]           Now the Plaintiffs have pursued civil litigation. To their credit, or perhaps to the credit of their counsel who has advised them well in this regard, the Defendants have not counterclaimed. Having acted provocatively to egg the Plaintiffs on and to prompt this gem of a lawsuit, the Defendants did not need to bring any claim themselves. The Plaintiffs have been their own worst adversaries.

[23]           In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

[24]           As I explained to Plaintiffs’ counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs. Litigation must focus on legal wrongs and legal rights – commodities which are in remarkably short supply in this action. As my colleague Perell J. put it in High Parklane Consulting Inc. v  Royal Group Technologies Ltd., [2007] OJ No 107 (SCJ), at para 36, “[i]t is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another…”

[25]           I cannot help but comment that the courts as public institutions are already bursting at the seams with all manner of claims. To add to that public burden the type of exchanges that these parties have engaged in would be to let the litigious society stray without a leash – or perhaps without a lis.  I note the observation made to this effect by the Supreme Court of New York in Johnson v Douglas, 734 NYS 2d 847, 187 Misc 2d 509, at 510 (2001):

Although we live in a particularly litigious society, the court is not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet. Such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads of the court in resolving serious tort claims for injuries to individuals.

[26]           What is true regarding the death of a family pet is certainly true regarding the scatology of a family pet. There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.

[27]           There is no serious issue to be tried in this action. The Plaintiff’s motion is therefore dismissed.

[28]           Both counsel have submitted costs outlines indicating that the parties have spent tens of thousands of dollars in legal fees. Costs awards are a discretionary matter under section 131 of the Courts of Justice Act. In exercising that discretion, Rule 57.01(1) of the Rules of Civil Procedure authorizes me to consider a number of factors including, in Rule 57.01(1)(d), “the importance of the issues”.

[29]           There will be no costs order. Each side deserves to bear its own costs.

The CaseMorland-Jones v. Taerk, 2014 ONSC 3061 (CanLII)

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EMPLOYERS WHO REVOKE A JOB OFFER DURING THE PANDEMIC MAY BE SUED AND HELD LIABLE FOR DAMAGES IN ONTARIO

In Kim v. BT Express Freight Systems (2020), 317 A.C.W.S. (3d) 255, Ontario’s Superior Court confirmed that an employer may be liable for damages if it withdraws an accepted offer of employment or terminates employment without cause prior to the start date. 

In this case, the employee had entered into an employment contract with the employer, which it breached by unilaterally terminating it without cause and without notice.  

The Court noted:

A valid employment contract creates an employment relationship even before any work begins.  An employee is entitled to reasonable notice for breach of that contract, and may sue for damages if appropriate notice is not given. (para. 11)”

The court also held that “viewed through the lens of wrongful dismissal or repudiation of contract,” or otherwise, the following were relevant to an assessment of damages:

  • the factors set out in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140, for assessing the reasonable notice period: character of the employment, length of service, age, and the availability of similar employment, considering the experience, training and qualifications of the employee;

  • the terms of the employment contract, including the existence of a probationary period and its length (probation).

While the court also stated that probation is relevant to an assessment of damages, in this case, probation was not applicable because the employee was never given the opportunity to start the job. 

The court awarded damages equivalent to three months’ salary, but damages for the last two weeks of the three months were reduced by income from new employment.

In assessing a three-month notice period, subject to this mitigated income, the Court applied the following factors:

  • the employee was 37;

  • he worked an import supervisor for 20 months at $50,000 per year;

  • he was not searching for another job, but was induced to change jobs on the employer’s promise of a higher salary and the possibility of advancement;

  • he was able to find another job at $52,000 per year 10 weeks after leaving. 

Based on the above, the Court found that the employment contact contemplated by the parties was, indeed, of a longer term in nature.

The Court also agreed the employee “was not treated properly by BTE”; however, this was properly addressed by the damage award. 

Bottom Line for Employers

Accordingly, if employers enter into a valid employment agreement, an employment relationship exists even before the employee begins to perform work. 

Even before the start date, an employee is entitled to reasonable notice for breach of the employment agreement unless an enforceable termination clause in the employment contract provides otherwise. 

If appropriate notice is not given and the circumstances permit, the employee may successfully sue for damages. 

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