MAR. 31 - UPDATE ON CERB - WHAT IT IS - WHO QUALIFIES - WHEN TO APPLY - TOP UPS - TAXABLE? - WHAT IF I GET EI? YOUR QUESTIONS ANSWERED

The Canada Emergency Response Benefit (the "CERB") is now available for residents of the City of Kawartha Lakes who qualify for this financial support. 

Here is an update on the CERB, including about how it affects employees' entitlements to Employment Insurance ("EI") benefits. 

WHAT IS CERB?

The CERB provides $2,000 a month for up to four months to individuals who have ceased working due to COVID-19. By contrast, EI benefits are 55% of normal weekly earnings, up to a maximum of $573 per week.

The CERB replaces the previously announced Emergency Care Benefit and the Emergency Support Benefit.

WHEN IS IT AVAILABLE

The online portal to apply for CERB will be available in early April 2020. The Federal Government has committed to making CERB payments within 10 days of application.

The CERB is paid every four weeks and available from March 15, 2020 until October 3, 2020.

WHO IS ELIGIBLE?

The CERB is available to individuals aged 15 or over who:

  • had income of at least $5,000 in 2019 or the 12 months preceding their application for the CERB;

  • cease working for reasons related to COVID-19; and

  • receive no income for at least 14 consecutive days within the four-week period for which the CERB is claimed, regardless of whether they are EI-eligible or not.

 

This includes residents in the City of Kawartha Lakes who are: 

  • unemployed due to termination of employment;

  • sick;

  • quarantined;

  • taking care of someone who is sick with COVID-19;

  • working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures;

  • still employed, but are not receiving income because of disruptions to their work situation due to COVID-19; and

  • contract workers and self-employed individuals who would not otherwise be eligible for EI.

An employee who quits voluntarily is not eligible for the CERB.

DO I APPLY FOR CERB OR EI? 

CERB is available to eligible individuals, whether they qualify for EI or not. 

The Federal Government has indicated that:

  • individuals who are already receiving EI regular and sickness benefits would continue to receive their benefits and should not apply for the CERB;

  • individuals who have already applied for EI and whose application has not yet been processed would not need to re-apply. It is not clear whether this means that the EI applications already in the system will continue to be processed in the normal course or be automatically "converted" into CERB applications; and

  • individuals whose EI benefits cease before October 3, 2020 could apply for the CERB once their EI benefits cease, if they are unable to return to work due to COVID-19.

 

It is not clear whether the CERB will replace EI entirely during the period of March 15, 2020 to October 3, 2020, as the Federal Government's announcement seems to suggest that individuals can continue to apply for EI.

CAN I GET A TOP-UP FROM MY EMPLOYER, TOO

No, at least not for now. 

Individuals are eligible for the CERB if they do not receive income from employment or self-employment during the days on which they have ceased working. It remains to be seen if the Federal Government will introduce regulations that would allow individuals to receive top-up benefits from their employers without eliminating or reducing the CERB, similar to the Supplemental Unemployment Benefit Program for EI.

IS IT TAXABLE

Yes, at least for now, but deductions will not be made at source. 

Therefore, individuals will receive the entire $2,000 every four weeks.

More details for CERB are being rolled out, including how to apply. 

Credit: 

Bonny Mak, Fasken, published Mar. 30, 2020 

 

 

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I'M ORDERED TO CLOSE THE BUSINESS, OR HAVE TO DUE TO LACK OF WORK - DO I LAY OFF THE EMPLOYEES? DO I PLACE THEM ON EMERGENCY LEAVE OF ABSENCE? HOW DO I CHOOSE? HOW DO I DO THE ROE?

FIRST QUESTION - ARE YOU “ESSENTIAL”?  

Review the list of essential workplaces here:

https://www.ontario.ca/page/list-essential-workplaces?_ga=2.260478349.1694204923.1585063245-661911018.1585063245

Make sure you are certain whether your business may continue in operation lawfully, or shut down by the Ontario government’s emergency order.

If you are not an “essential workplace”, per the list, you may have to determine whether your employees will be laid off, or placed on a Declared Emergency Leave (a “DEL”), per the recent changes to Ontario’s Employment Standards Act, 2000 (the “ESA”) (primarily the new job-protected, unpaid leave of absence available to employees who cannot work due or, or arising from, COVID-19.

You can find more information from us about the DELs here: http://wardlegal.ca/31582887996624 and here: http://wardlegal.ca/31582887996626

Remember, teleworking and online commerce are permitted at all times for all businesses.

WHAT IF YOU ARE “ESSENTIAL”, BUT NEED TO TEMPORARILY CLOSE DUE TO THE VIRUS?

You may need to consider temporary suspension of your business operations because of: (1) lack of work; or (2) the perception publicly, or otherwise, that you are not an essential business and are required to close, except for the ability to continue by teleworking or by remote operations.

This is important, because if your business is an “essential workplace”, but you stop operations anyway, it may impact whether you should lay off your employees, or place them on a DEL, legally. 

CAN I USE ‘WORK-SHARING’ TO AVOID LAY OFFS?

The federal work-sharing program is a potentially viable alternative to lay offs, if you qualify.

You can find more information from us on avoiding lay offs by using work-sharing here: http://wardlegal.ca/31582887996646

DO I LAY OFF EMPLOYEES OR PLACE THEM ON A DECLARED EMERGENCY LEAVE UNDER THE ESA?

If your business is not an “essential workplace” and, therefore, is required to cease operations due to the emergency order by the Ontario government, your employees are very likely eligible to be placed on a job-protected, unpaid DEL under the ESA and, as a result, they will also very likely be eligible to obtain employment insurance benefits (“EI”) or, alternatively, the new CERB, from the federal government. However, since a DEL is a statutory leave of absence permitted by the ESA, if your employees have extended health benefits, they should be continued during the DEL.

You can find more information from us about EI benefits and the CERB here: http://wardlegal.ca/31585663827847

However, if your business is not required to close by order, but you will be stopping your operations for other legitimate reasons, such as lack of work and demand, etc., this may still be temporary lay-off under the ESA and, therefore, your staff are eligible to apply for benefits under the EI Act.

EI benefits may offer your employees a greater financial benefit than the CERB, or vice versa.

Also, if you lay off employees, you have a statutory duty to call them back in thirteen weeks, unless the pandemic continues at that time and subject to any emergency orders in effect at that time.

Therefore, whether to lay off or place employees on DEL depends on:

[1] whether you are an “essential workplace”;

[2] whether you are closing by order, or voluntarily and, if the latter, whether you have legitimate business reasons to do so; and

[3] which route would increase the financial benefit to your employees during this pandemic; and

[4] if you have choice, whether you are comfortable, from a business perspective, with the potential obligation to call back your employees within a specified period of time, per the ESA, subject to the uncertain, future events for this pandemic. 

HOW DO I COMPLETE RECORDS OF EMPLOYMENT (ROEs)?

Here is how:

A – For layoff (i.e., lack of work)

D – For illness or injury (i.e., illness or quarantine due to COVID-19)

N – For leave (i.e., DEL in Ontario)

You can find more information about ROEs here: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

Service Canada has indicated that:

If your employees are directly affected by the coronavirus (COVID-19) and they are no longer working, you must issue a Record of Employment (ROE). When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments. When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments. When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.”

You should not use code E (i.e., the employee quit) without seeking legal advice before doing so, even if the employee refuses to go to or attend work, rightly or wrongly.

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MAR. 31 - UPDATE ON THE NEW FEDERAL WAGE SUBSIDY - 75% FOR EACH EMPLOYEE - IT'S A CREDIT, NOT A DIRECT PAYMENT - WHAT YOU NEED TO KNOW

As of March 30, 2020, businesses and organizations in the City of Kawartha Lakes who suffer a loss of not less than thirty per cent of revenue related to, or arising from, COVID-19, are now eligible for a wage subsidy of up to seventy-five per cent of each employee’s wages.

This program is called the “Canada Emergency Wage Subsidy” (the “Program”).

According to the federal Government’s announcements for the Program:

[1] it will provide a subsidy of up to seventy-five per cent of an employee’s wages (up from ten per cent, previously announced);

[2] it will apply to and extend to charities, non-profit organizations and both “large and small” businesses (before this, the only business corporations eligible were Canadian-controlled, private corporations that qualify for the small business deduction);

[3] it will benefit employers that have experienced a revenue decrease of at least thirty per cent due to, or arising from, COVID-19;

[4] apply to the first $58,700 earned per employee, being equivalent to up to $847 per week per employee (there is no longer any cap at the lesser of $1,375 per employee and $25,000 per employer); and

[5] be retroactive to March 15, 2020.

It is anticipated that the wage subsidiary will be available to businesses and organization by allowing an eligible employer to reduce the amount the employer would otherwise have to remit to the Canada Revenue Agency for payroll withholdings. In other words, it is an indirect wage subsidy, rather than a direct payment from the federal Government, at least for now. 

Legislation will also have to be enacted by the federal Government to solidify the Program, which hopefully will be tabled and passed promptly. It will need to be retroactive, too.    

The Program, as it currently stands, does not mean that employers pay employees only the seventy-five per cent the covered by the Program.

Rather, employers may only claim a credit for seventy-five per cent of what they actually pay their employees.

Claiming a tax credit under false pretences is an offence under the federal Income Tax Act.

The Program may continue to change and evolve as the pandemic continues.  

 

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COVID-19: NOT COMPLYING? BIG FINES. IMPRISONMENT. QUARANTINE IN CUSTODY.

Many residents locally express increasing concerns about and rightfully question what enforcement measures are being taken, for example, to:

[1] force returning travelers, who are not taking precautionary virus measures, to self-isolate; and

[2] ensure compliance generally with other emergency health declarations and orders in effect by the provincial and federal Governments, applying to everyone during this pandemic.

CANADA

To date, federally, the following orders have been made, with the corresponding enforcement measures being taken by the federal Government:

[1]      TRAVELERS RETURNING:

There is now a federal Emergency Order in effect, requiring any person entering Canada by air, sea or land to self-isolate for fourteen days, whether or not they have symptoms of COVID-19. The Government of Canada will use its authority under the federal Quarantine Act to ensure compliance with the order. Failure to comply with this Order is an offense under the Quarantine Act.

Maximum penalties for non-compliance include:

- a fine of up to $750,000; and/or
- imprisonment for six months.

[2]      EVERYONE (NOT ONLY RETURNING TRAVELERS):

In addition, for everyone, any person who causes a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening the Quarantine Act could be liable for:

- a fine of up to $1,000,000; or
- imprisonment of up to three years, or to both.

Spot checks will be conducted by the Government of Canada to verify compliance.

All individuals permitted to enter Canada are subject to this order, with the exception of certain persons who cross the border regularly to ensure the continued flow of goods and services, and those who provide essential services. Individuals exempt from the order will still need to practice social distancing and self monitoring and contact their local public health authority if they feel sick.

Individuals displaying symptoms of COVID-19 after arriving in Canada may not use public transportation to travel to their place of isolation. They also may not isolate in a place where they will be in contact with vulnerable people, such as seniors and individuals with underlying health conditions.

Since 2005, we have had the Quarantine Act available to require and govern preventative measures due to pandemic, like COVID-19, including mandatory self-isolation and quarantine and enforcement measures. The federal Health Minister is also statutorily empowered to require Ontario to take quarantine measures, including stay-at-home orders, closure of non-essential businesses and to establish self-isolation/quarantine facilities for those who do not comply.

Notably the federal Government has yet to enact the Emergencies Act, which would give it sweeping, broad powers to centrally control virus containment enforcement across the country. Many continue to question this decision, but if the so-called curve does not flatten fairly soon, it is expected the federal Government will also take this extraordinary “war times” measure.   

ONTARIO

The Government of Ontario has so far announced, for example, a $750 fine for failing to comply with a provincial order, including an emergency health declaration. There are additional fines that could be levied for obstructing a person ($1,000). Corporations can face much higher fines for non-compliance with Ontario’s emergency health orders, such as being closed if not classified as an essential service (up to $500,000). 

The Ontario Provincial Police have announced they will enforce any provincial health orders, such as closing non-essential businesses and maximum gathering capacity. They also report they will, under Ontario’s Emergency Management and Civil Protection Act, continue to strictly enforce any further health emergency declarations by the federal and provincial government.

It is unclear how much enforcement has been undertaken by the OPP to date. It does not appear there have been any imprisonments, at least. 

MUNICIPAL

There is no consistent, unified approach among municipalities, or their municipal police services.

Few municipalities seem to be taking pro-active, decisive and independent enforcement measures. Others, such as the City of Toronto, have announced very significant fines and imprisonment terms for those who violate provincial orders. That city continues to set up its enforcement team, led by Toronto Public Health. Non-compliance will escalate to the Toronto Police service, if necessary.

The City of Kawartha Lakes, which has authority to establish its own enforcement measures, as it has officially declared a state of emergency, has yet to adopt or implement any specific enforcement measures for non-compliance with either provincial or federal orders. As it stands, the Lindsay Police Service, for example, working with both our Health Unit and the City, will rely on Canada’s Criminal Code, existing governmental orders and municipal licensing standards to enforce safety and containment measures.

Municipally-driven enforcement measures are ostensibly piecemeal and uncoordinated. Some municipalities, particularly those more urbanized, are doing more than others.

As a result, there is an increasing call throughout Ontario, and other provinces, for the federal Government to enact the Emergencies Act, including to centralize and directly control a country-wide standard for enforcement measures in an effort to contain the virus. 

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COVID-19 - NEW HELP FOR SMALL BUSINESSES - WAGE SUBSIDY AND GUARANTEED LOANS

The federal government has now announced more financial support to small and medium-sized businesses, including to avoid lay offs and try to maintain payroll during the pandemic.

Specifically, a new 75% wage subsidy has been declared. Previously the federal Government has announced a 10% wage subsidy.

Secondly, small and medium-sized business can apply for and obtain loans, that the federal Government will GUARANTEE for up to $40,000.

These loans must be interest-free for the first year of the loan.

If you qualify as an eligible small business and you maintain employing your staff on a full-time basis, you may reduce the amount of tax you pay at end-of-month payroll by 75% of wages paid (i.e., an indirect wage subsidy).

You, or your payroll agent, will have to self-calculate your monthly wage subsidy, which you realize by way of reduced tax deductions at source.

Get more information and keep updated here, including when to begin the wage subsidy program:

https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html?fbclid=IwAR2bwxtdMg1SmbBIOh59r22eUOKfJJCltLmDf-emma8pEkKGDTB75RCSE8I

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QUICK LINKS TO THE FEDERAL FINANCIAL SUPPORT YOU MAY NEED - COVID-19

You are a click away from asking for federal financial support: employment insurance, emergency benefits, mortgage help, increased child tax benefits.

Here are the quick links to the help you may need:

EMPLOYMENT INSURANCE (Regular Benefits):

Laid off, told to stay home, etc. How to apply:
https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/apply.html
 
EMERGENCY SUPPORT BENEFIT:
Laid off, reduced hours, do not qualify for EI regular benefits above:
 
https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#emergency_support_benefit
 
EMERGENCY INSURANCE SICKNESS BENEFIT:
 
No Paid Sick Leave, quarantined, sick? [New "CERB"]
 
https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#improved_access_employment_insurance_sickness_benefit
 
EMERGENCY CARE BENEFIT:
 
Do not qualify for EI, but you are sick, quarantined and/or taking care of children at home or family members:
 
https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#emergency_care_benefit
 
NEED MORTGAGE HELP?
 
https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#mortgage_support
 
INCREASED CHILD CARE BENEFITS:
 
https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#increasing_canada_child_benefit
 
EXTENDED TAX DEADLINE - JUNE 1:
 
www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#extra_time_income_taxes
 
DEDICATED EI TELEPHONE:
 
1-833-381-2725
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THE VIRUS - THE COST OF NON-COMPLIANCE. BIG FINES. JAIL. QUARANTINE IN CUSTODY.

Many residents locally express increasing concerns about and rightfully question what enforcement measures are being taken, for example, to:

[1] force returning travelers, who are not taking precautionary virus measures, to self-isolate; and

[2] ensure compliance generally with other emergency health declarations and orders in effect by the provincial and federal Governments, applying to everyone during this pandemic.

CANADA

To date, federally, the following orders have been made, with the corresponding enforcement measures being taken by the federal Government:

[1]      TRAVELERS RETURNING:

There is now a federal Emergency Order in effect, requiring any person entering Canada by air, sea or land to self-isolate for fourteen days, whether or not they have symptoms of COVID-19. The Government of Canada will use its authority under the federal Quarantine Act to ensure compliance with the order. Failure to comply with this Order is an offense under the Quarantine Act.

Maximum penalties for non-compliance include:

- a fine of up to $750,000; and/or
- imprisonment for six months.

[2]      EVERYONE (NOT ONLY RETURNING TRAVELERS):

In addition, for everyone, any person who causes a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening the Quarantine Act could be liable for:

- a fine of up to $1,000,000; or
- imprisonment of up to three years, or to both.

Spot checks will be conducted by the Government of Canada to verify compliance.

All individuals permitted to enter Canada are subject to this order, with the exception of certain persons who cross the border regularly to ensure the continued flow of goods and services, and those who provide essential services. Individuals exempt from the order will still need to practice social distancing and self monitoring and contact their local public health authority if they feel sick.

Individuals displaying symptoms of COVID-19 after arriving in Canada may not use public transportation to travel to their place of isolation. They also may not isolate in a place where they will be in contact with vulnerable people, such as seniors and individuals with underlying health conditions.

Since 2005, we have had the Quarantine Act available to require and govern preventative measures due to pandemic, like COVID-19, including mandatory self-isolation and quarantine and enforcement measures. The federal Health Minister is also statutorily empowered to require Ontario to take quarantine measures, including stay-at-home orders, closure of non-essential businesses and to establish self-isolation/quarantine facilities for those who do not comply.

Notably the federal Government has yet to enact the Emergencies Act, which would give it sweeping, broad powers to centrally control virus containment enforcement across the country. Many continue to question this decision, but if the so-called curve does not flatten fairly soon, it is expected the federal Government will also take this extraordinary “war times” measure.   

ONTARIO

The Government of Ontario has so far announced, for example, a $750 fine for failing to comply with a provincial order, including an emergency health declaration. There are additional fines that could be levied for obstructing a person ($1,000). Corporations can face much higher fines for non-compliance with Ontario’s emergency health orders, such as being closed if not classified as an essential service (up to $500,000). 

The Ontario Provincial Police have announced they will enforce any provincial health orders, such as closing non-essential businesses and maximum gathering capacity. They also report they will, under Ontario’s Emergency Management and Civil Protection Act, continue to strictly enforce any further health emergency declarations by the federal and provincial government.

It is unclear how much enforcement has been undertaken by the OPP to date. It does not appear there have been any imprisonments, at least. 

MUNICIPAL

There is no consistent, unified approach among municipalities, or their municipal police services.

Few municipalities seem to be taking pro-active, decisive and independent enforcement measures. Others, such as the City of Toronto, have announced very significant fines and imprisonment terms for those who violate provincial orders. That city continues to set up its enforcement team, led by Toronto Public Health. Non-compliance will escalate to the Toronto Police service, if necessary.

The City of Kawartha Lakes, which has authority to establish its own enforcement measures, as it has officially declared a state of emergency, has yet to adopt or implement any specific enforcement measures for non-compliance with either provincial or federal orders. As it stands, the Lindsay Police Service, for example, working with both our Health Unit and the City, will rely on Canada’s Criminal Code, existing governmental orders and municipal licensing standards to enforce safety and containment measures.

Municipally-driven enforcement measures are ostensibly piecemeal and uncoordinated. Some municipalities, particularly those more urbanized, are doing more than others.

As a result, there is an increasing call throughout Ontario, and other provinces, for the federal Government to enact the Emergencies Act, including to centralize and directly control a country-wide standard for enforcement measures in an effort to contain the virus. 

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THE VIRUS - DOES IT CANCEL CONTRACTS? RENTAL AGREEMENTS? SEPARATION AND PARENTING AGREEMENTS? MAYBE - READ ON

The virus - does it mean your contract with another person will be cancelled, or be unenforceable by you or the other party? Your rental agreement with a landlord or tenant? What about my separation or parenting agreement with my former partner or spouse?

The answer: maybe. 

It is early days; the litigation of the issues is yet to happen. 

It ultimately depends on whether your contract has a "force majeure" cause (or an "Act of God" clause) or, alternatively, if you (or the other party to your contract) can prove that the contract is "frustrated" for reasons beyond the control of the party seeking relief from the contract; namely, due to the pandemic and the remedial actions taken by all three levels of government and directions of health officials. 

This issue is certain to arise, likely very soon. Meanwhile, the Courts are temporarily closed, except for truly urgent matters, offering very limited judicial resources to help in the event of contractual disputes. 

Below is an excellent explanation of the law regarding contracts and enforceability of contractual obligations during the virus crisis. 

It remains to be seen how this will impact of all of us, but it certainly will become an increasingly important issues for many of us. 

As of today, medical authorities estimate that over 300,000 people have been infected with the novel coronavirus, COVID-19.  As a result of the need for social distancing, some businesses have had to close their doors, while many other businesses have slowed, even while their operations continue. Given the resulting economic uncertainty, people are understandably less inclined to buy; businesses have less money to pay rent to their landlords and salaries to their employees; and landlords and other businesses have less money to make mortgage payments to their lenders.  Stores cannot pay for merchandise.  It may not be anyone’s fault, but people are going to lose money.  A storm of litigation is brewing and the winners or losers of those lawsuits may depend on whether the contracts between these parties have a force majeure clause and whether it will be applied in respect of our present situation.  Alternatively, it may depend on whether a litigant can prove that circumstances beyond a party’s control frustrated their ability to comply with their contractual obligations.

This blog is intended to provide a brief overview of force majeure clauses and the equitable principle of frustration of contract and their potential applicability to the COVID-19 pandemic.

What is a Force Majeure Clause?

Many commercial agreements contain a provision that allows parties to be released from their contractual obligations and responsibilities in the event of serious unforeseen circumstances. These provisions are often referred to as “force majeure” clauses. The Supreme Court of Canada described the operation of a force majeure clause as follows:

An act of God clause or force majeure clause […] generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill.1

force majeure clause often includes a laundry list of events that would fall under the purview of an “event beyond the control of either party”. For example, in Tom Jones & Sons Ltd. v. R.2 the force majeure clause at issue in that case commenced upon any of the following events:

If by reason of strikes, lockouts, governmental restriction, acts of God, non-availability of labour or materials, unavoidable casualty, civil commotion, war, fire, hindering subsurface condition existing on the site, extreme weather conditions […] or, any other cause beyond the control.3

Does COVID-19 Trigger Force Majeure Clauses?

The answer is a definitive “maybe”.  At the outset, force majeure clauses are drafted differently from contract to contract.  As a result, the express language contained in such a clause will greatly impact its interpretation and potential application.  Similarly, even if such a clause could potentially apply, the clause itself may limit the scope of what terms of the contract a party will be relieved from.

The events surrounding COVID-19 intuitively suggest that they could fall within the Supreme Court’s definition of a force majeure clause.  The fact that it is being described as a “pandemic” by the World Health Organization and its global impact would suggest that such clauses may be applicable, but again, each clause is unique and will turn on its own specific wording.  These terms would have to be reviewed carefully to assess whether such a clause could be relied upon.

As an example, if we again turn to the language contained in the force majeure clause in Tom Jones, it makes no express reference to terms such as “pandemic”, “epidemic”, or “disease” as being a basis upon which the clause could apply.  On the other hand, given that various levels of government in Canada have disseminated various directives, ordered businesses and borders to close, and declared various states of emergency,4 it may be argued that these actions fall under the auspices of the term “governmental restriction”.

Again, an assessment of these clauses must be conducted on a case-by-case basis as the specific wording of the clause could be the determining factor.

Can a COVID-19 Related Economic Downturn Trigger a Force Majeure Clause?

Assuming that a force majeure clause does not contain a specific term or phrase that would be triggered by COVID-19, clients may query as to whether the related economic-downturn that has followed in the wake of COVID-19 could prompt parties to rely upon a force majeure clause to vitiate their contractual obligations.

Generally speaking, courts have held that force majeure clauses may not be resorted to where circumstances affect the profitability of a contract or the ease with which a party’s obligations can be performed.  For example, in Domtar Inc. v. Univar Canada Ltd.,5 the defendant sought to rely on a force majeure clause when sudden market changes made it more expensive to supply caustic soda at the contract price. The clause in question read as follows:

The term “force majeure” means any contingency beyond the reasonable control of Supplier or Customer (for example, war or hostilities, Acts of God, accident, fire, explosion, public protest, breakage of equipment, governmental actions or legislation, or labour difficulties) which interferes with Supplier’s or Customer’s production, supply, transportation or consumption practices.6

The Court held the force majeure clause would not apply to a contract simply because it became more expensive due to market changes.7

Similarly, In the case of Tandrin Aviation Holdings Ltd. v. Aero Toy Store LLC,8 the defendant claimed it was unable to accept delivery of an executive jet aircraft that was the subject of the contract because of the “unanticipated, unforeseeable and cataclysmic downward spiral of the world’s financial markets”. The Court disagreed, observing that “it is well established [ … ] that a change in economic/market circumstances, affecting the profitability of a contract or the ease with which the parties’ obligations can be performed, is not regarded as being a force majeure event”.9

In conclusion, courts have been skeptical of allowing a change in market circumstances to trigger a force majeure clause.

Frustration of Contract

If a contract does not contain a force majeure clause, or the clause is of no assistance because of its terms, a party may, in very limited circumstances, be able to argue that it is relieved from its contractual obligations by claiming the contract is “frustrated.”

Frustration occurs when an event, through no fault of either party, creates a new circumstance which has the effect of making the contract impossible to fulfill. In such situations, both parties are discharged from further performance of their obligations under the contract.10 The parties are relieved of their obligations because to force performance despite the new and changed circumstances would be to order the party to do something fundamentally different from what the parties originally bargained for.11

COVID-19 and Frustration

The threshold required for frustration is a very high one. In order to rely on it, a party must show that the original reason for entering into the transaction was completely destroyed by a supervening event.

Generally, as in the case of force majeure clauses, courts have not accepted economic disruption or falling markets to constitute an event that would frustrate a contract. For example, the case of Forest Hill Homes v. Ou12 involved a home that was to be purchased from, and built by, the plaintiff. The parties agreed to the purchase in November of 2016, but the closing date was not until 2019. At the date of closing the plaintiff was ready to close, but the defendant took the position that the contract had been frustrated due to the “drastic and unforeseeable drop in the real estate market”, which made it impossible for them to close.13

The judge concluded that there is nothing about changes in the market that amounts to an unforeseen event which would trigger frustration and that, even if there were, it was incumbent upon the buyer to adduce real estate market evidence in support thereof.14

Conclusion

Parties who may seek to rely on a force majeure clause should have a legal professional carefully review the precise language of the clause to determine whether it may cover the intervening event and to determine the scope of relief that may be available under the contract, even if the clause could potentially apply.

Similarly, in the event a party is unable to perform a contract, legal advice should be sought to assess the strengths of a claim that a contract has been frustrated.

On a practical basis, given the current COVID-19 circumstances, the existence of a force majeure clause (even if there are arguments both for and against its applicability) may facilitate an approach to the other contracting parties to see if they are prepared to renegotiate a mutually-agreeable outcome before litigation could arise from the application of such a clause.

Footnotes

  1.   Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp & Paper Co., 1 S.C.R. 580 at para. 4 (Atlantic Paper). 
     
  2.   Tom Jones & Sons Ltd. v. R. 31 O.R. (2d) 649, (H.C.) (Tom Jones). 
     
  3.   Tom Jones & Sons Ltd. v. R. 31 O.R. (2d) 649, (H.C.) at para. 13. 
     
  4.   “Ontario Enacts Declaration of Emergency to Protect the Public. Ontario News Room, March 17, 2020; “Coronavirus: Canada to bar entry for most foreigners. BBC, March 16, 2020Nunavut declares state of public health emergency.” CBC News, March 18, 2020; “Alberta declared a public health emergency over COVID-19.” CTV News, March 17, 2020. 
     
  5.   Domtar Inc. v. Univar Canada Ltd., 2011 BCSC 1776. 
     
  6.   Domtar Inc. v. Univar Canada Ltd., 2011 BCSC 1776 at para. 75. 
     
  7.   Domtar Inc. v. Univar Canada Ltd., 2011 BCSC 1776 at para. 92. 
     
  8.   Tandrin Aviation Holdings Ltd. v. Aero Toy Store LLC, (2010) EWHC 40 (Cmm) (Tandrin). 
     
  9.   Tandrin Aviation Holdings Ltd. v. Aero Toy Store LLC, (2010) EWHC 40 (Cmm) at para. 30. 
     
  10.   Naylor Group Inc. v. Ellis-Don Construction Ltd., 2011 SCC 58. 
     
  11.   Naylor Group Inc. v. Ellis-Don Construction Ltd., 2011 SCC 58 at para. 55. 
     
  12.   Forest Hill Homes v. Ou, 2019 ONSC 4332 (Forest Hill). For other examples see: Bang v. Sebastian, 2018 ONSC 6226; Paradise Homes North West Inc. v. Sidhu, 2019 ONSC 1600. 
     
  13.   Forest Hill Homes v. Ou, 2019 ONSC 4332 at para. 5. 
     
  14.   Forest Hill Homes v. Ou, 2019 ONSC 4332 at paras. 5-6 

Credit: 

Bradley Phillips and Robert Alfieri, Wagner Sidlofsky, published March 23, 2020

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ARE YOU APPOINTED A POWER OF ATTORNEY FOR PERSONAL CARE? FOR AN ELDERLY PERSON? COVID-19 - YOU MUST BE PREPARED. A CHECKLIST.

Are you appointed as another's power of attorney for personal care, particularly an elderly person who may be residing at a retirement or long-term living facility?

If so, during this pandemic, you need to be prepared to act in your fiduciary capacity, including to make difficult healthcare decisions on behalf of the person who appointed you, the "grantor". 

In these very uncertain times, when the virus continues to evolve and new developments happen and information is obtained very day, as a power of attorney for personal care, you must be ready and informed about your duties, if they arise. 

Here is a helpful summary about your role and duties as a power of attorney for personal care: 

In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.

Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety.  An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.

According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person.  In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.

If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:

  • Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
  • Determine whether there are any specific instructions/restrictions in the POA PC.
  • Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
  • Encourage and facilitate communication between the grantor and his/her family and friends.
  • Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.

The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest.  Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.

Making decisions as an attorney can be difficult, particularly in uncertain circumstances.  It is important to be prepared.  The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here.  A lawyer should be consulted so the attorney understands their duties.

Credit: 

Jenna Bontorin, Hull & Hull LLP, hullandhull.com, published March 26, 2020. 

 

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THERE IS AN ALTERNATIVE TO LAY OFFS - EMPLOYEE TIME CAN BE REDUCED UP TO 60%, BUT OPERATIONS CONTINUE. YOU MAY QUALIFY FOR THE WORK-SHARING PROGRAM.

Canada’s “Work-Sharing” program is an adjustment program, which may offer relief and an alternative to employers financially impacted by COVID-19, including those experiencing a slow down in business, but who continue to operate at some level.

The program is intended to assist employers to avoid layoffs, particularly during this pandemic, if the employer experiences a temporary reduction in the usual amount of business activity that is beyond the control of the employer, as may be the case with COVID-19. 

The program involves a three-party agreement between the employer, the employees and Service Canada.

Work-sharing allows employees to work reduced hours and share work equally between one another.

The other key aspects of the program are:

  • the employer must apply to the program at least thirty days in advance of the start date of the program;

  • the employees will be eligible for benefits through the program if they agree to work reduced hours;

  • there must be at least two employees willing to share job duties;

  • the employer must be: a publicly-held company; a private enterprise or a non-profit organization, which must in business for at least one year, reduced from 2 years due to COVID-19;

  • the employer must demonstrate a temporary work shortage, beyond their control, of 10% or more;

  • the employees undergoing work shortages must be “core employees” (i.e., not seasonal, casual employees);  

  • the mandatory “cooling-off” period, where an employer cannot re-enter a work sharing agreement with the same employees, has been waived temporarily due to COVID-19; and  

  • the maximum duration of the work sharing has been increased from 38 weeks to 76 weeks due to COVID-19.

Employees who participate in the program who do the same, or substantially similar, work will become part of the "Work-Sharing unit".

Employees in a Work-Sharing unit can have their hours reduced by up to 60%. 

To apply to the program, employers must submit:

  • the application for work sharing;

  • the attachment to the application (PDF or Excel); and

  • a recovery plan, which must demonstrate that the employer will implement activities during the period of the work-sharing agreement to alleviate the work shortage in order to return the work-sharing unit(s) to normal working hours by the end of the agreement.

Employees eligible to participate are those who:

  • are "core" employees, meaning they are permanent full-time or part-time employees who are required to carry out the everyday functions of normal business activity, and not seasonal or casual employees/students;

  • are eligible to receive EI benefits; and

  • agree to a reduction in their normal working hours in order to share work.

More information is available here:

https://www.canada.ca/en/employment-social-development/services/work-sharing.html

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COVID-19 IS SPREADING; END THE RACISM SURGING WITH IT - OUR OPINION.

Both regrettably and predictably, racism and discrimination appear to be surging with the spread of the COVID-19 virus. 

Credible sources now report that xenophobia, racially-motivated acts of discrimination and harassment towards ethnic groups is increasing. 

Through public messaging by some, including the President of the United States, COVID-19 has been referred to as the "Chinese" and the "Wuhan" virus, on the basis that it is believed to have originated in Wuhan, China. 

Doing so only serves to reinforce negative connotations, perception and stigma, inescapably encouraging more pronounced and insidious racist ideologies and prejudices directed at a specific ethnic group.

As a result, members of our Asian ethnicities have been targeted. Some report experiencing more racist acts during the pandemic, presumably attributable to existing racist views, assumptions and unconscious biases of racialized people and groups, as well as stigma, fear, or being misinformed.

There is some legal protection against these unjustified acts, promulgated by Canada's Criminal Code (hate crimes, etc.). 

In addition, employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Differential treatment related to this virus is not permissible and prohibited by Ontario's law.

COVID-19 does not discriminate against specific ethnic groups, why would we? 

We should all raise our voices against stigma and discrimination

Nervous fear is natural and expected in this crisis, but it cannot translate into short-signed, divisive hate-mongering. This is not a "Chinese" virus, as a certain leader may espouse. Rather, this is global pandemic, of which we are all, by necessity, a part.

Civility must prevail. Solidarity and altruism, not bigotry, will triumph.

We are all in this together.

 

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COVID-19 - FAMILY COURT AFFIRMS - SEPARATED AND DIVORCED CO-PARENTS CANNOT TAKE ADVANTAGE OF COVID-19 - EMERGENCY MOTIONS CAN BE MADE AND WILL BE DECIDED ON A CASE-BY-CASE BASIS

The Superior Court has affirmed that separated and divorced co-parents must work cooperatively, flexibly and together to parent children during this unprecedented crisis. 

The Family Court in this, and every other Ontario, jurisdiction is closed, except that only urgent and emergency matters will be considered, despite the extraordinarily strained judicial resources available currently. 

We have written on this very important issue previously.

Here are the links to those articles: 

"COURT RELEASE IMPORTANT DECISION COURT RELEASES IMPORTANT DECISION TO SEPARATED PARENTS - WORK TOGETHER - DO NOT USE COVID-19 TO TRY TO GAIN A TACTICAL PARENTING ADVANTAGE "- http://wardlegal.ca/31582887996636

- and - 

"COVID-19 - HELP TO SEPARATED/DIVORCED PARENTS" - http://wardlegal.ca/31582887996602

Justices loathe any parent who may attempt to take advantage of COVID-19 to gain a tactical advantage over a co-parent regarding the parenting of a child - that is clear. 

However, the Court acknowledges that we are in "unchartered territory" currently, without the benefit of proper knowledge and understanding of the true nature of the virus and the science surrounding it, making it very difficult to assess the potential risks to a child arising from co-parenting arrangements. 

The test is always the best interests of a child, which is very rarely served if a co-parent has no opportunity to be with the child - the Court regularly espouses this principle. 

While a co-parent is permitted to file an "Urgent Motion" seeking co-parenting relief, such as withholding access or seeking it, the Court will initially determine whether the motion is truly urgent, before it will consider evaluating the merits of each party's position in terms of the child's best interest and where and when the child should reside, or be. 

In every case so far, where a co-parent sought urgent relief by motion to the Family Court during the pandemic, the Court has ruled that the issue is NOT URGENT and granted no relief, except to dismiss the motion. 

On March 25, 2020, another Family Court Justice made the same decision. A copy of the decision is reproduced below, as it should be read carefully by every co-parent, particularly those that may have, or have the propensity to be engaged in, conflict on the parenting issues. 

In this case, there was no Court order in place regarding the parenting arrangements for the child, but the parents had established a pattern for their parenting (i.e., a status quo). The mother withheld the child, alleging to do otherwise would pose risk and harm to the child due to exposure to COVID-19. The mother's allegations appear in the decision below. 

The father disputed this and brought an urgent motion seeking reinstatement of the alleged, pre-existing (status quo) parenting arrangements. 

The Court is sympathetic to the circumstances, but does not grant the father any relief by deciding, at the initial threshold test, that the matter is not urgent. Accordingly, the best interests of the child generally, in terms of parenting time and place, were not addressed by the Court, due to the threshold test not being achieved. 

This decision below is a must-read for any co-parent concerned about a child during the pandemic. 

However, the Court will decide each case on a case-by-case - the Court has made that clear in its decisions. 

Therefore, if a co-parent can produce strong evidence that the other co-parent is not engaging in proper containment measures, as recommended and/or directed by our governments and applicable health officials, the Court may determine the matter is urgent, as the potential harm to the child is established and proved on an urgent basis; specifically, to protect the child from potential harm. 

In this case, however, the Court did not find the circumstances sufficiently urgent to allow the motion to proceed. 

What is clear, though, from the decisions of the Court is that a co-parent cannot attempt to utilize the COVID-19 crisis to gain some tactical advantage against the other co-parent. Even if a motion to address it may be determined to be not urgent, such conduct will most certainly be considered as soon as possible by the Family Court and may have negative consequences to the manipulating co-parent, and potentially the child. 

Here is the decision: 

COURT FILE NO.: 684/19
DATE: 2020/03/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Douglas (Applicant) v. Douglas (Respondent)
BEFORE: Justice W.L. MacPherson
APPEARANCES: None
COUNSEL: Virginia Workman
Applicant
Bruce Macdonald
Respondent


E N D O R S E M E N T -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession of the Chief Justice of Ontario. See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].


[2] In accordance with the Regional Notice to Profession dated March 18, 2020 and replaced by a subsequent Notice dated March 24, 2020, electronic materials were filed by the applicant’s counsel through the Courthouse email address.

[3] This matter was referred to me as Triage Judge, for a determination of urgency and how this matter is to proceed.

[4] At this point I have received and reviewed the following:

a) Form 14B Motion Form dated March 24, 2020;
b) Affidavit of the Applicant sworn March 24, 2020 and various exhibits, including emails between the parties.
-
[5] The following evidence has been provided by the father:

a) The parties were married on August 26, 2011 and have been separated since December 10, 2018. There is one child, H , who is 6 1/2 years of age.
b) A court action was commenced by the father. A case conference was held on January 10, 2020. The Office of the Children’s Lawyer was requested to be become
involved, but they declined. There are currently no court orders in place dealing with parenting time.
c) The father alleges that the mother has demonstrated a pattern of denying access. Nevertheless, since in or about February 2019 the father has apparently had regular time
with the child on alternating weekends from Friday at 4 p.m. until the commencement of school on Monday and if it is a non-school day return of the child takes place at 8:00 a.m.
In addition, the father has had the child each Thursday following his access weekend from 4:00 p.m. to 7:00 p.m.
d) The father last had access to the child during the weekend of March 13, 2020 to March 16, 2020.
e) On March 18, 2020 the mother advised the father by email that the child would remain in her care. She noted concerns about the father’s exposure to the COVID-19 virus
at work (as an Assistant Manager at Lowe’s) ; the need for social distancing and that she was practicing same in her household, her workplace (location not disclosed) and the State of Emergency declared in the Province of Ontario; that travel from one parents’ home to the other (according to the father being a 14 minute car ride) was “unnecessary travel”; and the child having recently been ill (weekend of March 13, 2020 for which the mother had provided detailed treatment instructions as that was father’s access weekend.
f) When the father expressed his disagreement that the child should remain with the mother, she then raised additional concerns about potential exposure while in the father’s
care due to: a recent national hiring day at Lowes; he had allowed the child to play with another child; the father’s family travels and the need for them to be self-isolating and not involved in caring for H . No assurances by the father to address each of these concerns were acceptable to the mother who insisted that the child must remain in her care.
g) On March 19, 2020 the father attended at the mother’s home to exercise the regular Thursday access, but this was refused by the mother.
h) Facetime visits have been requested by the father and although it appears from the emails that the mother did offer such a visit on March 18, 2020, according to the father, as
of March 24, 2020, no such visits have taken place.

[6] The father has brought a motion seeking the reinstatement of status quo arrangements permitting the father to have access to H on alternating weekends and alternating Thursdays.

[7] The issue to be determined: Is this motion urgent?

[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.

[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional wellbeing. Total removal of one parent from any child’s life must be exercised cautiously.

[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief’s notice that confirms that all court operations are suspended with the exception of those
that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”

[11] The matter is understandably very important to the father. However, in my view it is not urgent nor is it an emergency. There is no indication that H ’s safety is at risk. While father’s counsel might wish to have this court interpret the mother’s actions as wrongfully retaining the child, from my perspective, the language used in the Chief’s notice was done purposefully to mirror the language under the Convention on Civil Aspects of International Child Abductions (the “Hague Convention”) and would not be applicable when the issue is parenting time. It may be that
there will be some limited scenarios involving an abduction of a child where relief is sought under the Children’s Law Reform Act, and a court finds such matter to be urgent. But this is not one of those cases.

[12] Within that context, I find that the motion is not urgent at this time.

[13] I would point out that in the Chief’s notice, the Chief Justice of Ontario called “upon the cooperation of counsel and parties to engage in every effort to resolve matters” during the period of suspension of regular court operations.

[14] The parties have experienced family law counsel representing them. It does not appear that mother’s counsel has responded to father’s counsel in any meaningful way to reach a reasonable resolution. He is encouraged to do so. Surely a complete termination of all contact between the
child and his father cannot be in the child’s best interests even in these unprecedented times.

[15] Finally, all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.

Justice W.L. MacPherson
DATE: March 25, 2020

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COVID-19: WHAT HAPPENS IF A PERSON BECOMES INCAPABLE TO MAKE CARE DECISIONS DUE TO THE VIRUS AND HAS NO POA? HERE'S WHO MAKES THE DECISIONS

During the COVID-19 pandemic, what happens when a person in Ontario becomes disabled or incapacitated due to the virus, to the extent that the person cannot make decisions about his or her own health care or treatment? 

In short, someone else is authorized or appointed to make those decisions for the incapacitated person, subject to certain rules and duties imposed by law. 

However, we have a hierarchy of decision-making power in Ontario.

Here is an excellent article by Sydney Osmar of Hull & Hull explaining this hierarchy and how personal health care decisions are regulated for incapable people:  

"Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker." 

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YOUR NEW CHEAT SHEET FOR EI BENEFITS DURING COVID-19. LAID OFF? TAKING CARE OF KIDS? CAREGIVER? THE NEW DEAL [AS OF MAR. 25, 2020]

The federal Government continues to develop and change employment insurance benefits during this pandemic. 

Here is a list of the employment insurance (EI) benefits available to you for emergency financial support, as of March 25, 2020:

EXISTING - REGULAR EMPLOYMENT INSURANCE:

EI regular benefits provides benefits to individuals who lose their jobs through no fault of their own (i.e., due to shortage of work, seasonal or mass lay-offs), including attributable to COVID-19.

To be eligible:

 the employee must have worked 600 insurable hours in the last 52 weeks; and

 the employee must have lost his or her employ through no fault of his or her own

If you have been laid off from your work as a result of your employer`s response to COVID-19 you are eligible for Regular Employment Insurance.

You can apply at this link:

https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

EXISTING – EI SICKNESS BENEFIT:

Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or self-quarantine, to allow them time to restore their health and return to work.

Canadians who are self-quarantined (as instructed by either a public health official or an occupational health official through their workplaces) can apply for EI sickness benefits.

You can apply here:

https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

To be eligible:

 the employee must be unable to work for medical reasons;  

 the employee accumulated 600 insured hours of work in the 52 weeks before the start of your claim; and  

 the employee has been instructed by either a public health official or occupational health official through the workplace to self-quarantine (i.e. post-out-of-Ontario travel, after testing positive for COVID-19, or while awaiting test results).

More information on the EI sickness benefit here:

https://www.canada.ca/en/services/benefits/ei/ei-sickness.html

EXISTING – FAMILY CAREGIVER BENEFIT:

The Family Caregiver Benefit for Children allows eligible caregivers to receive up to 35 weeks of financial assistance to provide care or support to a critically ill or injured child.  

To be eligible:

o the patient/child’s life must be at risk of illness or injury;  

o the patient/child must be experiencing a significant change in their baseline state of health;  

o the patient/child must require the care and support of one of more family members; and  

o a primary physician must declare how long the patient/child would require the caregiving support of the parent/family member.  

With respect to COVID-19, caregivers are not likely to be eligible for this EI benefit unless their child tests positive for COVID-19 and is actively receiving treatment.

NEW – CANADA EMERGENCY RESPONSE BENEFIT (“CERB”):

The Canada Emergency Response Benefit (CERB) offers income support for up to SIXTEEN weeks to those who lose pay because of the COVID-19 pandemic.

The federal Government reports that CERB will be a "simpler and more accessible" program, now covering employees who lost their jobs, got sick, are under quarantine or have to stay home because of school closures.

The CERB collapses and replaces entirely the two, previously announced benefits; specifically, the Emergency Care Benefit and the Emergency Support Benefit.

CERB is available to wage earners, contract workers and self-employed people, who do not otherwise qualify for EI benefits, as explained above.

Specifically, the CERB will provide a taxable benefit of $2,000 monthly ($500 weekly), for up to four months to:

  • those who must stop working due to COVID19 and do not have access to paid leave or other income support;
  • workers who are sick, quarantined, or taking care of someone who is sick with COVID-19;
  • working parents who must stay home, without pay, to care for children that are sick or need additional care because of school and daycare closures;
  • workers who still have their employment, but are not being paid because there is currently insufficient work and their employer has asked them not to come to work; and
  • those who are self-employed, in the gig economy or operate as freelancers, including contract workers, who would not otherwise qualify for EI benefits, as explained above.

The online portal to apply for CERB will be available in early April, and most Canadians can expect payments within ten days. 

CERB payments will be issued every four weeks, and will be available from March 15, 2020 to Oct. 3, 2020.

WHAT ABOUT THOSE ALREADY RECEIVING EI?

Canadians already receiving EI regular benefits and/or sickness benefits will, as of March 25, 2020, continue to receive those benefits and should not apply to the CERB.

Canadians who already have applied for EI, but whose application has not yet been processed, do not need to reapply.

Canadians who are eligible for EI regular and/or sickness benefits may still access those benefits if he or she remains unemployed after the sixteen-week period covered by the CERB.

More information about the CERB is available here:

https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#new_canada_emergency_response_benefit

CLAWBACKS AND DEDUCTIONS AGAINST EI BENEFITS (FOR WORKING):

If an employee works while receiving EI (sickness or regular) benefits, the employee is able to keep only one-half (i.e., $0.50) of the EI benefits for every dollar earned earn, up to 90% of the weekly insurable earnings used to calculate the employee’s EI benefit amount (i.e., the earnings threshold). If the employee earns any income above the earnings threshold, the Commission will deduct those amounts dollar-for-dollar from the benefits received by the employee. Whether an employee’s income during an EI benefit period will be deducted depends on whether the income falls within the meaning of “earnings” in the EI program.

Certain kinds of income will not impact EI benefits, including:

[a] disability benefits;

[b] survivor or dependent benefits;

[c] worker's compensation benefits paid under specific regulations;

[d] additional insurance benefits paid under an approved private plan (for example, payments for pain and suffering or medical expenses that received from an insurance company after an employee has been injured in a car accident);

[e] additional sickness benefits paid by an employer from a registered supplemental unemployment benefit plan (as long as the income, benefits, and additional amounts combined do not exceed 95% of the weekly earnings);  

[f] sickness or disability payments received under a private wage loss replacement plan; and

[g] retroactive salary increases.

Here is a chart explaining what constitutes earnings for EI:

https://www.canada.ca/en/services/benefits/ei/earnings-chart.html

EMPLOYER-PAID “TOP UP” TO EI BENEFITS [SIMILAR TO PARENTAL OR MATERNAL LEAVE]:

If an employer tops-up an employees earnings, beyond the EI (sick or regular) benefits, it will be considered “earnings” and will be deducted or clawed-back from the employee’s benefits, unless the top-up was given under a formalized “top up” plan, otherwise known as a “Supplemental Unemployment Benefit”. Therefore, employees who received an informal, non-registered top-up, at least currently, are likely to be subject to claw-back against their EI benefits.

SUB PLANS – SUPPLEMENTAL UNEMPLOYMENT BENEFIT PLAN (“SUB”) – NO CLAWBACK:  

Any employer can utilize a SUB to increase employees’ weekly earning during a period of unemployment, when they are unemployed as a result of a temporary stoppage or shortage of work, training, illness, injury or quarantine. Payments from SUBs must be registered with Service Canada – they are not considered to be earnings and are not deducted from EI (sick and regular) benefits.  

SUBs must be registered by Service Canada, as of the date on which the application for the SUB is filed by the employer. SUBs must be registered before the effective date of the SUB. If a SUB plan is not registered, at least currently, any top-up payments by the employer to EI (sick or regular) benefits will be deemed as “earnings”, and be subject to deduction or claw-back, as explained above.

More information about SUBs is available here:

https://www.canada.ca/en/privy-council/corporate/transparency/reporting-spending/departmental-results-reports/2016-2017/supporting-information-sub-programs.html

A sample SUB is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/supplemental-unemployment-benefit/sample.html

PROVINCIAL (ESA) LEAVES OF ABSENCE AND EI BENEFITS – TIED TOGETHER:

Note that the new, statutory leaves of absence authorized by Ontario in response to COVID-19 are tied to, and rely on, the federal EI program to compensate employees while they are away from work. However, this is subject to change depending on what funding is allocated to the program in response to the COVID-19 pandemic.

More information about Ontario’s COVID-19-related authorized leaves of absence can be found here:

http://wardlegal.ca/31582887996624

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COURT RELEASES IMPORTANT DECISION TO SEPARATED PARENTS - WORK TOGETHER - DO NOT USE COVID-19 TO TRY TO GAIN A TACTICAL PARENTING ADVANTAGE

The COVID-19 pandemic requires urgent communication, co-operation and flexibility between separated and divorced co-parents.

Both co-parents and their child(ren) must isolate at home, like everyone else. This may require adjustments to existing parenting orders or arrangements. 

Please refer to our earlier article regarding advice and guidance to separated parents during this pandemic here: http://wardlegal.ca/31582887996602  

In the meantime, the Superior Court has released a very important decision, which all separated and divorced parents should read carefully, particularly if there is any parenting dispute arising from, or during, this pandemic. 

The Superior Court is closed, subject only to truly urgent motions, including for family law matters. 

Here, the mother sought to deny access to the father due to her concerns about COVID-19 and that the father would not take precautionary measures to protect the children. 

The Court's decision appears below. Notably, the Court denied granting any relief, as it was not deemed to be urgent. More importantly, the Court, if not expressly, than by inference, admonishes all parents against attempting to gain any tactical advantage related to the COVID-19 crisis. 

The Court's decision: 

March 24, 2020 Triage Judge Endorsement (COVID-19 Protocol)
SUPERIOR COURT OF JUSTICE, FAMILY COURT (HAMILTON) File #: 517/19
File Name: Ribeiro v Wright
Appearances: None

1 AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession
dated March 18, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession dated March 18, 2020 available at https://www.ontariocourts.ca/scj/covid-19-
suspension-fam/


2 Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.

3 At this point I have received and reviewed:

a. Emergency Notice of Motion of Applicant dated March 22, 2020 (with the return date marked “To Be Determined”.
b. Affidavit of the Applicant dated March 22, 2020.

4 The issue:

a. The parties have had joint custody of their now nine year old son since a final order in 2012. Primary residence has always been with the mother.
b. The father has always had access. In 2019 he brought a motion to expand parenting time. That motion is currently outstanding.
c. The most recent access arrangement is set out in a (consent) temporary order dated September 6, 2019. The father has access on alternate weekends from
Friday 6:00 p.m. to Sunday at 6:30 p.m.
d. The mother has brought an urgent motion to suspend all in-person access because of COVID-19.
e. The mother expresses concern that the father will not maintain social distancing for the child during periods of access.
f. In any event, the mother says she and her family are practicing social isolation in their home for the duration of the COVID-19 crisis. She doesn’t want her son leaving the home for any reason – including seeing the father.

5 I want to clearly explain why, as Triage Judge, I am not authorizing this matter proceeding as an urgent hearing at this time.


6 The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful
period for everyone.


7 On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.


8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.


9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID -19 is resolved. But children’s lives –
and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is
inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.


11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may
be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.


12 In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under
self -isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).


13 In some cases, a parent’s personal risk f actors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID -19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.


15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result
in changes to transportation, exchange locations, or any terms of supervision.


16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount
of time in a household – including children of former relationships.


17 Each family will have its own unique issues and complications. There will be no easy answers.


18 But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.


19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited
resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.


20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.


21 We will deal with COVID-19 parenting issues on a case-by-case basis.


a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are
inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants;
compliance with public safety directives; etc.
c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.


22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.


23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking f or is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.


24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance f or people who don’t take parenting responsibilities or COV ID-19 seriously.


25 I have carefully reviewed the materials filed on this case. Even in the absence of responding materials from the father, I have had the benefit of considering the e-mails he exchanged with the Applicant’s lawyer in relation to COVID -19 considerations.


26 While the mother’s concerns about COVID -19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.


27 Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.
a. The disruption of our lives is anxiety producing for everyone.
b. It is even more confusing for children who may have a difficult time understanding.
c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.
e. Right now, families need more cooperation. And less litigation.


28 I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.
29 My denial of authorization to proceed with an urgent motion is without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise.


Any future motion would again have to be reviewed by the Triage Judge. However, I hope that both parents will understand the limitations of the family court process at this critical time.

30 None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.


Justice A. Pazaratz
(Original copy will be placed in court file)

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COVID-19: BUSINESS OWNERS - CHECK YOUR COMMERCIAL POLICY - YOU MAY HAVE A CLAIM FOR BUSINESS INTERRUPTION INSURANCE

Generally, business interruption insurance is part of first-party commercial property insurance.

Usually, the insurer agrees to pay to, or reimburse, the business owner for the actual loss of business income the business experienced because of the interruption to the business itself, including while the business if being restored, when the interruption was caused by direct physical loss, damage, or destruction to property, caused by an insured against peril.

Accordingly, physical damage to the place of business is a prerequisite. 

In addition, the interruption must have been caused by the physical damage.

With COVID-19, it may be problematic to prove direct physical loss or damage.

Furthermore, it not uncommon for a business interruption policy to exclude perils such as viruses and disease.

There may also be problems establishing that virus caused the business losses. For example, for businesses deemed to be "essential" by the Ontario Government, the insurer may take the position that, for example, the losses were caused by the owner's decision to preemptively close the business due to fear of the virus.

For "essential" businesses, that may not be such an issue.  

In any event, insurers do sell policy coverage and endorsements offering protection for business interruption caused by a disease. If any owner had such coverage, it would be advisable to consider making a claim.

There may also be an insurance endorsement covering business loss sustained by the owner due to an inability to access the business premises, particularly where it is prohibited by any government order, or the directive of any other civil authority.  This is certainly the case currently for "non-essential" businesses in Ontario. It is also likely that more businesses will, in the near future, be declared "non-essential", as the virus progresses throughout our province. 

Moreover, a business owner may also have purchased “contingent business interruption” coverage, which protects the business from losses resulting from damage caused by interruption of supply. However, often the business interruption must be caused by damage to the suppliers’ property.

Often whether there is available coverage will depend on the specific language in the policy or endorsement; not all policies are the same - there is no standard language. In fact, may policies vary in terms of the language and coverage options. It will also depend on the nature of the loss, having regard to the language of the policy.  

Therefore, if you are a business owner with a commercial insurance policy, you should promptly review your policy and speak to your insurance broker for additional guidance. Ultimately a claim should potentially be considered for business loss arising from COVID-19 and the municipal, provincial and federal government's remedial responses to the virus pandemic. 

Indeed, keep a watchful eye on this issue, as the governments' response will surely develop and change as the virus continues to spread.  

Interestingly,  the March 18, 2020 “National Law Review” reports that a lawsuit was commenced by a restaurant owner in the State of Louisiana asking for the Court declare that its insurance policy did not contain any exclusion for viral pandemic. The owner claimed the commercial policy covers the restaurant business for any future government-related shutdown orders, due to physical loss from COVID-19 contamination. The owner also claimed the insurer should be legally required to provide income coverage if COVID-19 were to contaminate the restaurant.

The owner basically claimed that contamination of the insured place of business by COVID-19 constitutes a direct physical loss, thereby necessitating remediation to clean the surfaces of the establishment. 

The Court has not made its final decision, but certainly the issue is already being raised judicially. 

Mind you, this is entirely different jurisdiction, whose laws do not apply directly in Ontario. 

This said, this issue is certainly to find its way into the Ontario Courts in the near future, if not already. 

What should you, as a business owner, do? 

If you have a commercial insurance policy, review it. 

Contact your broker for his or her advice on whether business interruption insurance should be claimed to the insurer. 

Ultimately it is the insurer who must either allow or deny the claim - a broker cannot do so and you should not exclusively rely on your broker's advice about whether to bring a claim, or not - rather, your broker's advice and guidance is a factor to consider in your decision.  

Even if a tenable claim cannot now be made, that may change in the future, as the uncertainty of this virus continues to move forward. 

 

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I'M IN AN "ESSENTIAL WORKPLACE" - DO I HAVE TO GO TO WORK? I'M WORRIED. NOT IF YOU QUALIFY FOR EMERGENCY LEAVE

The Ontario Government has ordered the mandatory closure of all non-essential workplaces, effective March 24, 2020 at 11:59 p.m. This order will be in effect for fourteen days with the possibility of being extended as the circumstances evolve.

Here is a list of “essential workplaces” in Ontario, as declared:

ttps://s3.amazonaws.com/files.news.ontario.ca/opo/en/2020/03/list-of-essential-workplaces-2.html

For the purposes of this order, businesses include any for-profit, non-profit or other entity providing the goods and services described by the list. This does not preclude the provision of work and services by entities not on the list either online, by telephone or by mail/delivery. Furthermore, teleworking and online commerce are permitted at all times for all businesses. Businesses can operate virtually and remotely, in other words.

If there is any issue whether an organization constitutes an “essential workplace”, the Government also announced that it will be setting up a 1-800 number and Web site for inquiries.

If your employer is an “essential workplace”, you may be legally permitted not to attend work due to COVID-19.

Your position will be job-protected, but your employer will not be required to pay your regular pay during your leave of absence. However, the federal Government has established new employment insurance (“EI”) benefits to correspond with these measures by Ontario. They are intended to work together. 

Employer’s Duty to Provide a Safe Work Environment:

Firstly, for background on the issue, employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.

Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a period of fourteen days if:

  • they have travelled anywhere outside of Canada (including the United States of America).
  • they live with, provided care for, or spent extensive time with someone who:
    • has tested positive for COVID-19; or
    • is suspected of having COVID-19; or
    • has respiratory symptoms (fever, cough, or shortness of breath) that started within fourteen days of travel outside of Canada.

If you meet any of these requirements, you should immediately self-isolate at home only.

New Infectious Disease Emergency Leave (i.e., COVID-19):

We now have "declared emergency" and "infectious disease emergencies" leaves of absence from the workplace, per the new legislation the Ontario government passed very recently, retroactive to January 25, 2020; namely, Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to amend the job-protected leaves of absence under the Employment Standards Act, 2000 (ESA) (“Bill 186).

Under this new legislation, employees of “essential workplaces” are entitled to take an unpaid leave of absence if they are unable to work for any of the following reasons:

- the employee is under individual medical investigation, supervision, or treatment, in connection with COVID-19;

- the employee is acting in accordance with an order by a medical officer of health or by the Ontario Court of Justice under the Health Protection and Promotion Act;

- the employee is in isolation, quarantine, or subject to some other control measure (including self-isolation) where the employee is acting in accordance with public health information or directions issued by a public health official, a qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or board of health;

- the employee is acting in accordance with a direction of the employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;

the employee needs to provide care or support to a specified individual (as set out below), for example because of a school or daycare closure;

- the employee cannot return to Ontario as a result of travel restrictions related to the designated infectious disease; and/or

- any other reasons(s) that the Government may further declare.

Incidentally, COVID-19 has been designated as a designated infectious disease.

For both declared emergencies and designated infectious disease emergencies, the leave is available if the employee cannot perform their job duties as a result of having to provide care or support for a specified individual. Bill 186 significantly expands the list of specified individuals to increase the availability of the leave. The specified individuals for the purposes of these leaves are:

- the employee’s spouse;

- a parent, step-parent or foster parent of the employee or the employee’s spouse;

- a child, step-child or foster child of the employee or the employee’s spouse;

- a child who is under legal guardianship of the employee or the employee’s spouse;

- a brother, step-brother, sister or step-sister of the employee;

- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;

- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;

- a son-in-law or daughter-in-law of the employee or the employee’s spouse;

- an uncle or aunt of the employee or the employee’s spouse;

- a nephew or niece of the employee or the employee’s spouse;

- the spouse of the employee’s grandchild, uncle, aunt, nephew or niece;

- a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met; and

- any individual prescribed as a family member by the Government for the purposes of the above.

Employees wishing to take this Infectious Disease Emergency Leave will not be required to provide a medical note to employers. However, employers can require that employees provide evidence that is reasonable in the circumstances (at a time that is reasonable in the circumstances) to substantiate their absence. The official for Bill 186 suggests that employers can request things such as a note from a daycare or evidence of a cancelled flight. Employers are permitted to request supporting evidence of entitlement from an employee who takes the leave; however, this right is somewhat qualified. The evidence requested must be “reasonable in the circumstances” and must be provided at a time that is also “reasonable in the circumstances.” Importantly, the employer is not permitted to request a medical certificate as evidence of entitlement to the leave.

The job protection under Bill 186 is retroactive to January 25, 2020, which is the date that the first presumptive COVID-19 case was confirmed in Ontario. The Ontario Government indicates that these measures will remain in place “until COVID-19 is defeated”.

Declared Emergency Leave:

In addition to the Infectious Disease Emergency Leave, the Declared Emergency Leave remains available to all employees, if an employee cannot perform his or her job duties as a result of a declared emergency under Ontario’s Emergency Management and Civil Protection Act (EMCPA) and:

- because of an order that applies to the employee under the EMCPA;

- because of an order that applies to the employee under the Health Protection and Promotion Act;

- because the employee is needed to provide care or assistance for a specified individual (as set out above); or

- any other reason that may be prescribed by the Government.

The Declared Emergency Leave is also unpaid and will be available for the duration of the declared emergency.

General:

The usual ESA protections for statutory leaves of absence apply equally to these new emergency leaves, including anti-reprisal provisions, the right to continue to participate in certain benefits unless the employee opts not to continue to pay their share of the premiums (if any), and the right to reinstatement.

COVID-19 continues to have a significant impact on Canadian workplaces resulting in employers having to layoff staff due to work shortages and temporary closures. Employers should proceed with caution and obtain legal advice before seeking to temporarily layoff an employee who may be eligible for an ESA leave. The amendments also provide flexibility to employees in terms of providing supporting evidence of the entitlement to the leave. It is conceivable that in certain circumstances, it would be reasonable for an employee to provide evidence after the leave is taken.

Should My Employer Pay Me During my Emergency Leave?

The question of whether an employer should remunerate an employee during the fourteen-day shutdown period can be complex. There is no one-size-fits-all approach.

Employees who are not employed by essential workplaces, or who qualify for the new emergency leaves, may also apply for the corresponding EI benefits now available from the federal Government.

What if an employee has symptoms but does not meet the requirements to self-isolate?

If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing), they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the fourteen-day period has elapsed or when a medical professional authorizes them to return to work.

What if an employee does not want to self-isolate?

If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e., meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation fourteen-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.

What if an employee wants to social distance and work-from-home?

Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. Prime Minister Justin Trudeau has advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.

Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. Employers should inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.

Does an employer have to pay an employee during quarantine?

There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.

In addition, the Federal government has initiated new, corresponding measures to support workers affected by COVID-19 and placed in quarantine:

  • the one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
  • a new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
  • employees claiming EI sickness benefits due to quarantine are not required to provide a supporting medical certificate; and
  • employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay. 
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COVID-19 - NON-ESSENTIAL? LAID OFF AT WORK? WHAT YOU NEED TO KNOW. YOUR RIGHTS.

Due the shutdown of non-essential workplaces, effective March 24, 2020, many employers will be considering temporarily laying off employees, at those employers who do not qualify as “essential workplaces”.

This is not a risk-fee, easy-to-do step by an employer, despite the catastrophic circumstances.

Ontario’s Employment Standards Act, 2000 (the “ESA”) allows employers to invoke a temporary layoff, which does not amount to a termination or severance of employment.

Temporary Lay Off – Defined:

A temporary lay off is:

1. a layoff of not more than 13 weeks, in any period of 20 consecutive weeks;

2. a layoff of more than 13 weeks, in any period of 20 consecutive weeks, if the layoff is less than 35 weeks in any period of 52 consecutive weeks and:

  • the employee continues to receive substantial payments from the employer;
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan;
  • the employee receives supplementary unemployment benefits;
  • the employee is employed elsewhere during the layoff and would be entitled to receive supplementary unemployment benefits if that were not so;
  • the employer recalls the employee within the time approved by the Director of Employment Standards;
  • in the case of an employee who is not represented by a union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

3. in the case of an employee represented by a union, a layoff longer than a layoff described in clause 2 above, where the employer recalls the employee within the time set out in an agreement between the employer and the union (i.e., recall rights in a collective agreement).

Any employers who temporarily lays an employee off, without specifying a recall date, is deemed not to have terminated the employ of the employee, unless the period of the layoff exceeds that of a temporary layoff.

So, if a layoff exceeds this period above, an employee will be deemed to have been terminated and, therefore, will be entitled to ESA termination pay and severance pay, if applicable.

In addition to providing pay in lieu of notice when a layoff exceeds the period in which it is considered temporary, employers in Ontario must provide employees who have more than five years of service with statutory severance pay when the layoff exceeds 35 weeks in a 52 week period. Similarly, federally regulated employers are required to pay statutory severance pay when a layoff exceeds certain timeframes.

Employers are not required to provide employees with notice in advance of a temporary layoff, but unionized employers may be subject to notice requirements under their collective agreements, which may create significant difficulty due to the Ontario Government’s reasonably unexpected order.

In a unionized workplace, there may also be layoff and recall procedures that must be followed.

In addition, if the layoff of a unionized employee extends beyond 34 weeks (i.e. lasts for 35 weeks or more) and the employer and the union have an agreement that requires a recall period of 35 weeks or more, the employee may elect to take statutory termination pay and severance pay, if applicable, or retain their recall rights, but not both.

Mass Layoffs:

The notice/pay in lieu of notice to which employees are entitled increases significantly when a layoff is considered a mass layoff. Layoffs are considered to be mass layoffs when:

  • more than 10 employees are impacted within certain periods of time in New Brunswick, Newfoundland and Labrador, Nova Scotia and Saskatchewan; and

  • more than 50 employees are impacted within certain periods of time in Alberta, BC, Manitoba and Ontario.

In addition, employers in many provinces must provide notice, sometimes in a specific form, to the government. The same applies for federally regulated employers.

Exceptions:

If the lay off exceeds the required temporary period, there are also exceptions to an employer’s obligation to provide notice/pay in lieu of notice, including severance pay, if applicable, under the ESA, such as:

• when the employment contract is impossible to perform due to:                      

• unforeseeable or unpreventable causes beyond the employee's control; or            

• a fortuitous or unforeseeable event or circumstance;                   

• the temporary or indefinite termination of employment because of lack of work; or

• the actions of any government authority that directly affects the operations of the employer.

These exceptions would, it appears, clearly be invoked by the COVID-19 pandemic and, if so, an employee may not be entitled to any statutory pay. 

When employees are temporarily laid off, employers should issue Records of Employment, so the employees may apply for Employment Insurance (“EI”) benefits, if they qualify.

The Legal Debate:

Historically, even thought the ESA permits lay offs, if there is no term in an employment agreement (express or implied) permitting temporary layoffs (or in some cases an established practice relating to temporary layoffs), a layoff, even if intended to be temporary, may result in the risk of constructive dismissal claims. In other words, even if a temporary layoff under the ESA is carried out properly, such that employment is not deemed terminated under the ESA, if there is no agreement to the contrary and/or a well established practice, a unilateral layoff by an employer may result in triggering a termination of employ, pursuant to Ontario’s common law (i.e., Judge-made law).

However, COVID-19 is unprecedented. As a result, it is doubtful that the traditional legal approach would prevail, if an employee were to sue due to being temporarily laid off. Arguably there is an implied term in every employment relationship that a temporary lay off would be permissible in these catastrophic circumstances, particularly if an employer has been ordered shut down by the Government.

In addition, the virus and its extraordinary implications may create an argument that an employment relationship has been frustrated, unable to be performed due to circumstances beyond the parties’ control or management. Frustration is a legal principle providing that an unforeseen change to the circumstances underlying the contract, through no fault of the parties, renders the contract incapable of performance.

Moreover, a constructive dismissal claim may arise where there has been a unilateral change by the employer, which substantially alters an essential term of the parties’ employment contract, verbal or in writing. Therefore, if a change to the terms and conditions of employment are not imposed by the employer, but are rather imposed as a result of a mandatory closure ordered by the Ontario Government, it is very questionable in these extraordinary circumstances whether an employee would be able to successfully argue that the temporary layoff constitutes a constructive dismissal. An employee claiming constructive dismissal also has an obligation to mitigate any damages they allege to have suffered, which means that if a laid off employee is recalled to work and declines, a Court may subsequently determine that the employee failed to mitigate his or her damages, reducing the amount awarded for the termination.

Some employers, if financially able to do so, should consider continuing benefits and/or providing supplementary unemployment benefits to qualify for the longer temporary layoff period under the ESA.

Finally, employees are also entitled to a job-protected, unpaid leave of absence if the employee will not be performing the duties of his or her position due to emergency declared under Ontario’s Emergency Management and Civil Protection Act (“EMCPA”). Employees may also qualify for infectious disease leave of absence, too, being a job-protected, unpaid leave of absence as well, for which EI benefits are also available.

 

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COVID-19: HUMAN RIGHTS PROTECTIONS FOR EMPLOYEES. NO DIFFERENT TREATMENT. ABILITY TO REFUSE WORK.

Employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.
 

Credit: 

Anne Lemay and Nathan Hoo, Gowlings WLG, published March 19, 2020, via Lexology.com 

 

 

 

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I'M WORRIED. I HAVE TO TAKE CARE OF MY KIDS. DO I HAVE TO GO TO WORK? WHAT ARE MY OPTIONS?

You have options and may be legally permitted not to attend work. Your position will be job-protected, but your employer will not be required to pay your regular pay during your leave of absence.

We now have "declared emergency" and "infectious disease emergencies" leaves of absence from the workplace, per the new legislation the Ontario government passed very recently, retroactive to January 25, 2020:

[Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to amend the job-protected leaves of absence under the Employment Standards Act, 2000 (ESA)]:

Declared Emergencies:

The amended declared emergency leave remains available if an employee cannot perform his or her job duties as a result of a declared emergency under the Emergency Management and Civil Protection Act (EMCPA) and:

- because of an order that applies to the employee under the EMCPA;

- because of an order that applies to the employee under the Health Protection and Promotion Act;

- because the employee is needed to provide care or assistance for a specified individual (as set out below); or

- any other reason that may be prescribed by regulation.

The declared emergency leave is unpaid and will be available for the duration of the declared emergency.

Infectious Disease Emergencies:

The new infectious disease emergencies leave is available only for “designated infectious diseases, ” which means that the particular disease must be designated in a regulation under the ESA. Once a disease is designated, the unpaid, job-protected leave is available if an employee will not be performing their job duties as a result of one or more of the following reasons related to the designated infectious disease:

- the employee is under individual medical investigation, supervision, or treatment;

- the employee is acting in accordance with an order by a medical officer of health or by the Ontario Court of Justice under the Health Protection and Promotion Act;

- the employee is in isolation, quarantine, or subject to some other control measure (including self-isolation) where the employee is acting in accordance with public health information or directions issued by a public health official, a qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or board of health;

- the employee is acting in accordance with a direction of the employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;

- the employee needs to provide care or support to a specified individual (as set out below), for example because of a school or daycare closure;

- the employee cannot return to Ontario as a result of travel restrictions related to the designated infectious disease; or
any other reasons that may be prescribed by regulation.
COVID-19 has been designated as a designated infectious disease.

General:

For both declared emergencies and designated infectious disease emergencies, the leave is available if the employee cannot perform their job duties as a result of having to provide care or support for a specified individual. Bill 186 significantly expands the list of specified individuals to increase the availability of the leave. The specified individuals for the purposes of these leaves are:

- the employee’s spouse.

- a parent, step-parent or foster parent of the employee or the employee’s spouse.

- a child, step-child or foster child of the employee or the employee’s spouse.

- a child who is under legal guardianship of the employee or the employee’s spouse.

- a brother, step-brother, sister or step-sister of the employee.

- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.

- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.

- a son-in-law or daughter-in-law of the employee or the employee’s spouse.

- an uncle or aunt of the employee or the employee’s spouse.

- a nephew or niece of the employee or the employee’s spouse.
The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.

A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

Any individual prescribed as a family member for the purposes of this section.

Employers are permitted to request supporting evidence of entitlement from an employee who takes the leave; however, this right is somewhat qualified. The evidence requested must be “reasonable in the circumstances” and must be provided at a time that is also “reasonable in the circumstances.” For a designated infectious disease emergency leave, the employer is not permitted to request a medical certificate as evidence of entitlement to the leave.

On March 17, 2020, Ontario passed an Order-in-Council declaring the COVID-19 outbreak to be an “emergency” under the Emergency Management and Civil Protection Act (EMCPA). This declaration enables the government to access a broad number of general powers set out under the EMCPA to respond to the emergency. The government used these powers to issue two orders to assist in reducing the spread of COVID-19. The first order requires the following establishments to remain closed until March 31, 2020:

- all facilities providing indoor recreational programs;
- all public libraries;
- all private schools under the Education Act;
- all licensed child care centres;
- all bars and restaurants (except takeout food and delivery);
- all theatres and movie cinemas; and
- all concert venues.

The second order prohibits all “organized public events of over fifty people.” This order includes parades, events, and communal services within places of worship, and will also extend to March 31st, 2020, unless terminated earlier.

The usual ESA protections for statutory leaves of absence apply equally to these new emergency leaves, including anti-reprisal provisions, the right to continue to participate in certain benefits unless the employee opts not to continue to pay their share of the premiums (if any), and the right to reinstatement.

COVID-19 continues to have a significant impact on Canadian workplaces resulting in employers having to layoff staff due to work shortages and temporary closures. Employers should proceed with caution and obtain legal advice before seeking to temporarily layoff an employee who may be eligible for an ESA leave. The amendments also provide flexibility to employees in terms of providing supporting evidence of the entitlement to the leave. It is conceivable that in certain circumstances, it would be reasonable for an employee to provide evidence after the leave is taken.

The rapid introduction and passing of Bill 186 to provide job-protected, unpaid leave entitlements to employees is part of the Ontario government’s response to manage the ongoing impact of the COVID-19 pandemic.

Credit: Emond Harnden - ehlaw.ca, published Mar. 20, 2020

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YOUR COMPLETE GUIDE TO EI BENEFITS AVAILABLE TO YOU DURING THIS CRISIS

If you have been laid off, cannot attend work due to the virus, or must stay home to care for children due to the school closures, here is a complete guide to the federal government’s Employment Insurance benefits available to you during this crisis and emergency, including answering your questions about being self-employed and “top-ups” from your employer, if any.

EMERGENCY BENEFITS AVAILABLE FROM THE FEDERAL GOVERNMENT:

Employees and parents are entitled to apply for new financial assistance through EI due to the COVID-19 crisis; specifically:

[1] a short-term Emergency Care Benefit, offering up to $900.00 bi-weekly, for up to 15 weeks, administered through the Canada Revenue Agency (“CRA”), available to:

[a] employees (including self-employed, gig economy and freelance workers), quarantined or sick with COVID-19, but do not qualify for regular EI sickness;  

[b] employees (including self-employed, gig economy and freelance workers), taking care of a family member who is sick with COVID-19, including an elderly parent, but who do not quality for EI sickness benefits; or

[c] parents who care or supervise their child(ren) because of the school closures and, as a result, cannot attend work and earn any income, regardless whether that parent may otherwise qualify for EI benefits.   

Applications for this benefit cannot be made until April, 2020. Each applicant will have to verify he or she is eligible for the benefit, including ongoing verification while the benefit is being received. A doctor’s note will not be required.    

 [2] a longer-term Emergency Support Benefit (i.e., income support program) for employees, administered through the CRA, offering up to $5 billion in support to workers who are ineligible for EI and are, or will be, unemployed, together with a proposed, one-time special funding payment by May of 2020 to low and modest-income families, administered through the Goods and Services Tax Credit – it is estimated that the average increase to income for those benefitting from this funding measure will be approximately $400.00 for single individuals and close to $600.00 for couples;

[3] an increase to the maximum annual Canada Child Benefit payment amounts for the 2019-20 benefit year by $300.00 per child;  

[4] emergency funding for targeted groups, who may be more vulnerable to the effects of COVID-19, including First Nations, Inuit and Metis Nation communities, and people repaying their student loans; and

[5] EI sickness benefits, providing up to 15 weeks of income replacement to eligible workers unable to work due to illness, injury or quarantine, intended to give workers adequate time to return to good health and to work, including those quarantined due to COVID-19, who are eligible for this benefit, too. Note: [a] the usual one-week wait period for EI sickness benefits will be waived for new claimed quarantined, so they are paid for the initial week of their claim; [b] priority EI application processing will reportedly be utilized for those claiming EI sickness benefits due to quarantine, who do not need to provide a doctor’s note or medical certificate in order to apply and receive this benefit; [c] it remains uncertain if a qualified worker will be required to provide ongoing updates and reporting, such as every two weeks, verifying continuous qualification for the benefit; and [d] workers who are unable to complete their claims for EI sickness benefits because of quarantine may apply in future and their claims will reportedly be backdated to over the quarantine-related delay;

QUALIFYING FOR EI SICKNESS BENEFITS (ELIGIBILITY):

To qualify for EI sickness benefits, you must:

[1] be employed in insurable employ;

[2] have had your normal weekly earnings have been reduced by more than 40%;

[3] have accumulated at least 600 hours of insurable employment during the qualifying period; and

[4] be self-employed, registered for EI and submitting premiums for at least one year.

If you are ineligible for EI sickness benefits, you may qualify for regular EI benefits.

More information is available about qualifying for regular EI benefits here:

https://www.canada.ca/en/services/benefits/ei.html.

SELF-EMPLOYED:

If you are self-employed, you can access EI special benefits by entering into an agreement, or registering, with the Canada Employment Insurance Commission. There are six types of EI special benefits currently:

  • Maternity benefits are for people who are away from work because they’re pregnant or have recently given birth (up to 15 weeks).
  • Parental benefits are for parents who are away from work to care for their newborn or newly adopted child. When applying for parental benefits, you need to choose between 2 options: standard or extended.
    • Up to 40 weeks of standard parental benefits can be paid to parents sharing benefits, but one parent cannot receive more than 35 weeks. If parents share benefits, they must choose the same option.
    • Up to 69 weeks of extended parental benefits can be paid to parents sharing benefits, but one parent cannot receive more than 61 weeks. If parents share benefits, they must choose the same option.
  • Sickness benefits are for people who cannot work due to injury, illness, or the need to be isolated in quarantine because they may be carrying a disease (up to 15 weeks).
  • Compassionate care benefits are for caregivers who must be away from work temporarily to provide care or support to a person who is seriously ill with a significant risk of death (up to 26 weeks). The 26 weeks of benefits can be shared between different caregivers who applied and are eligible to receive them.
  • The family caregiver benefit for children is for caregivers who must be away from work to provide care or support to a critically ill or injured child under 18. Either one or more caregivers can share up to 35 weeks of benefits between them.
  • The family caregiver benefit for adults is for caregivers who must be away from work to provide care or support to a critically ill or injured adult. Either one or more caregivers can share up to 15 weeks of benefits between them.

More information for self-employed individuals and EI benefits is here:

https://www.canada.ca/en/services/benefits/ei/ei-self-employed-workers.html

CLAWBACKS AND DEDUCTIONS AGAINST EI BENEFITS (FOR WORKING):

If an employee works while receiving EI (sickness or regular) benefits, the employee is able to keep only one-half (i.e., $0.50) of the EI benefits for every dollar earned earn, up to 90% of the weekly insurable earnings used to calculate the employee’s EI benefit amount (i.e., the earnings threshold). If the employee earns any income above the earnings threshold, the Commission will deduct those amounts dollar-for-dollar from the benefits received by the employee. Whether an employee’s income during an EI benefit period will be deducted depends on whether the income falls within the meaning of “earnings” in the EI program.

Certain kinds of income will not impact EI benefits, including:

[a] disability benefits;

[b] survivor or dependent benefits;

[c] worker's compensation benefits paid under specific regulations;

[d] additional insurance benefits paid under an approved private plan (for example, payments for pain and suffering or medical expenses that received from an insurance company after an employee has been injured in a car accident);

[e] additional sickness benefits paid by an employer from a registered supplemental unemployment benefit plan (as long as the income, benefits, and additional amounts combined do not exceed 95% of the weekly earnings);  

[f] sickness or disability payments received under a private wage loss replacement plan; and

[g] retroactive salary increases.

Here is a chart explaining what constitutes earnings for EI:

https://www.canada.ca/en/services/benefits/ei/earnings-chart.html

EMPLOYER-PAID “TOP UP” TO EI BENEFITS [SIMILAR TO PARENTAL OR MATERNAL LEAVE]:

If an employer tops-up an employees earnings, beyond the EI (sick or regular) benefits, it will be considered “earnings” and will be deducted or clawed-back from the employee’s benefits, unless the top-up was given under a formalized “top up” plan, otherwise known as a “Supplemental Unemployment Benefit”. Therefore, employees who received an informal, non-registered top-up, at least currently, are likely to be subject to claw-back against their EI benefits.

SUB PLANS – SUPPLEMENTAL UNEMPLOYMENT BENEFIT PLAN (“SUB”)NO CLAWBACK:  

Any employer can utilize a SUB to increase employees’ weekly earning during a period of unemployment, when they are unemployed as a result of a temporary stoppage or shortage of work, training, illness, injury or quarantine. Payments from SUBs must be registered with Service Canada – they are not considered to be earnings and are not deducted from EI (sick and regular) benefits.  

SUBs must be registered by Service Canada, as of the date on which the application for the SUB is filed by the employer. SUBs must be registered before the effective date of the SUB. If a SUB plan is not registered, at least currently, any top-up payments by the employer to EI (sick or regular) benefits will be deemed as “earnings”, and be subject to deduction or claw-back, as explained above.

More information about SUBs is available here:

https://www.canada.ca/en/privy-council/corporate/transparency/reporting-spending/departmental-results-reports/2016-2017/supporting-information-sub-programs.html

A sample SUB is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/supplemental-unemployment-benefit/sample.html

PROVINCIAL (ESA) LEAVES OF ABSENCE AND EI BENEFITS – TIED TOGETHER:

Note that the new, statutory leaves of absence authorized by Ontario in response to COVID-19 are tied to, and rely on, the federal EI program to compensate employees while they are away from work. However, this is subject to change depending on what funding is allocated to the program in response to the COVID-19 pandemic.

More information about Ontario’s COVID-19-related authorized leaves of absence can be found here:

https://www.facebook.com/jwpeppaTest/posts/3595895590481430?__tn__=K-R

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COVID-19 - CAN MY EMPLOYER FORCE ME TO STAY OR WORK FROM HOME? IF SO, DOES MY EMPLOYER STILL HAVE TO PAY ME?

Pending a provincial lock-down, except for essential services, which is imminently expected in Ontario, many employees are concerned about the ability of their employer to disallow them attending work.

The other issue is entitlement to pay for employees who are requested not to attend work, or who elect to take a new, statutory leave of absence related to COVID-19 and its implications. 

Below is a very good explanation of these issue, as it currently stands in Ontario, and subject to further directives from both the provincial and federal government.  

All of this is subject to change at any time as the provincial and federal response to this pandemic modulates and develops:  

As a result of the recent COVID-19 pandemic Canadian health authorities over the past week have requested that individuals exercise social distancing, and in certain circumstances self-isolation, to stymie the spread of the virus. Many employers are in the difficult position of determining how they can implement these public health measures in their workplace.

Duty to Provide a Safe Work Environment

Employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.

Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a 14-day period if:

  • they have travelled anywhere outside of Canada (including the United States of America).
  • they live with, provided care for, or spent extensive time with someone who:
    • has tested positive for COVID-19; or
    • is suspected of having COVID-19; or
    • has respiratory symptoms (fever, cough, or shortness of breath) that started within 14 days of travel outside of Canada.

Should an employee meet any of the above requirements, they should self-isolate at home.

The question of whether an employer should remunerate an employee during the 14-day period can be complex. There is no one-size-fits-all approach, and it is recommended that employers speak with a member of Gowling WLG's Employment, Labour & Equalities Group to develop an appropriate approach for your workplace.

What if an employee has symptoms but does not meet the requirements to self-isolate?

If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing) they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the 14-day period has elapsed or when a medical professional authorizes them to return to work.

What if an employee does not want to self-isolate?

If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e. meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation 14-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.

What if an employee wants to social distance and work-from-home?

Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. On March 16, 2020, Prime Minister Justin Trudeau advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.

Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. We recommend that employers inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.

Does an employer have to pay an employee during quarantine?

There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.

The Federal government has initiated a series of policy changes to support workers affected by COVID-19 and placed in quarantine:

  • The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
  • A new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
  • Employees claiming EI sickness benefits due to quarantine are required to provide a supporting medical certificate;
  • Employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay. 

Credit: Gowling WLG - André Poulin-Denis, published March 23, 2020, via Lexology.com 

 

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ONTARIO SHUTDOWN - QUICK GUIDE TO EMERGENCY INCOME AND OTHER SUPPORT AVAILABLE TO YOU

Due to the provincial shutdown, effective on Tuesday, March 24, 2020 at 11:59 p.m., if you are laid off or cannot be employed remotely, here is a Quick Reference Guide to the income and other supports available to you during this emergency: 

INCOME SUPPORT:

If you are laid off due to work closures:

If you are facing reduced work hours:

If you are facing unemployment AND you don’t qualify for EI:

  • Apply for the Emergency Support Benefit (long-term income support)

  • Applications will open in April through the CRA Web site and a toll-free number

  • Amounts and eligibility are not announced yet (total funding is $5 billion)

If you are unable to work due to illness/self-quarantine:

If you are self-quarantined and ineligible for EI:

  • Apply for the Emergency Care Benefit

  • Applications will open in April through the CRA website and a toll-free number

  • Up to $900 every 2 weeks for up to 15 weeks

  • No doctor’s note required

If you are self-employed:

  • Apply for the Emergency Care Benefit (see above)

If you are staying home to care for someone:

  • Apply for the Emergency Care Benefit (see above) if you are staying home to take care of a family member with COVID-19 who doesn’t qualify

  • Apply for the Emergency Care Benefit (see above) if you are a parent staying home to care for children due to school closures, whether or not you qualify for EI

ADDITIONAL SUPPORTS

  • NOTE: Tax filing deadline has been extended to June 1, payments due August 31

  • Low to middle income Canadians: GST credit top-up (average of $400 for single adults, $600 for couples) available as soon as May 2020

  • Families: Enhanced Canada Child Benefit this year (additional $300 per child)

  • Homeowners: Deferral of mortgage payments for affected Canadians by up to 6 months (disruptions to your pay interruptions to child care, or unexpected health needs)

  • Students: Freezing all Canada Student Loans payments and interest for 6 months (average savings $160 per month)

  • Seniors: Reducing mandatory withdrawal from RRIFs by 25%

  • Indigenous: New $305 million Indigenous Community Support Fund

  • Vulnerable Population: Additional $50 million available to shelters and centres for women and children fleeing domestic violence

GENERAL & MEDICAL INFORMATION

Call 1-888-COVID19/1-888-268-4319 for non-medical information on the virus, covering everything from travel recommendations to social distancing (available in more than 110 languages from 7:30am – 8:00pm, 7 days a week)

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COVID-19 - USING CANADA'S QUARANTINE ACT

Since 2005, we have had federal legislation enacted to require and govern preventative measures due to pandemic, like COVID-19, including mandatory self-isolation and quarantine and enforcement measures. The federal Health Minister is also statutorily empowered to require Ontario to take quarantine measures, including stay-at-home orders, closure of non-essential businesses and to establish self-isolation/quarantine facilities for those who do not comply.

The legislation is comprehensive and provides for all necessary preventative measures and enforcement. 

Link to the legislation: 

https://www.canlii.org/en/ca/laws/stat/sc-2005-c-20/latest/sc-2005-c-20.html

 

 

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COVID-19 - HELP TO SEPARATED/DIVORCED PARENTS

The COVID-19 pandemic requires urgent communication, co-operation and flexibility between separated and divorced co-parents.

Both co-parents and their child(ren) must isolate at home, like everyone else. This may require adjustments to existing parenting orders or arrangements. 

Co-parents must immediately:

[1] self-isolate and socially distance not only themselves, even when the child is not residing with that co-parent, but at every other time – no visitors, no exposure from others – strictly engage in and comply with all COVID-19 preventative measures (every family member);

[2] flexibly and co-operatively modify existing parenting arrangements to protect the safety and well-being of every child, and those with whom the child may come in contact, by isolating the child, requiring the child to stay at home and minimizing the child’s contact with any person other than the child’s immediate family members, with whom the child primarily resides;

[3] minimize, if not eliminate, access exchanges for the child – children should isolate together and in one home – if parenting arrangements currently require a child to be residing in both homes on a back-and-forth basis, arrangements should be made to extend residency periods in each home, rather than engaging in regular back-and-forth – at a minimum, week-by-week altering residency should be implemented, if not longer;

[4] minimize, if not eliminate, exposure of children to anyone not within the children’s immediate family, with whom the children are residing on a full-time basis – no playdates, birthday parties, shopping, or social visiting – provide regular assurances to the other co-parent that COVID-19 isolation and other required steps are being undertaken;

[5] facilitate and encourage regular and ongoing communication between a child and the other co-parent, unless to do so would be harmful to or threaten the safety or well-being of the child on a reasonable basis, even if this may not be required by existing Court orders, separation agreement or parenting plans;

[6] in addition to telephone, text and other traditional communication, download and implement virtual and online communication methods for every child to communicate with a non-residential parent, such as Facetime, Zoom, Hangout Meet, Skype, etc.

[7] if communication between co-parents is strained, utilize parenting communication platforms to achieve the COVID-19 containment objectives, such as Our Family Wizard, so a proper record is maintained and secured of both co-parents’ reasonable efforts, flexibility and co-operation;          

[8] at a minimum, strictly follow and adhere to any communication requirements in an existing Court order, separation agreement or parenting plan;

[9] discuss and co-ordinate a strategy for discussing the COVID-19 pandemic with the child, including to identify and ease any anxiety, confusion or fear the child may be experiencing;

[10] promptly notify the other co-parent of any changes to a child’s health, particularly related to COVID-19 symptoms, and respond to any enquiries by the other co-parent on a prompt and reasonable basis;

[11] if child support is an issue, co-parents should continue the status quo arrangements, unless they can agree, on a reasonable basis, to modify the financial arrangements to reflect changes or modifications to the parenting arrangements – for example, if the parenting is modified temporarily from an equal time sharing arrangement to a child residing only with one co-parent primarily, it may be appropriate to temporarily modify the child support arrangements, subject to the ability of the co-parents to do so, financially; and

[12] other than these emergency, urgent measures undertaken to attempt to contain the virus, co-parents should otherwise follow strictly their existing Court orders, separation agreements and parenting plans, except as agreed otherwise by them to address these extraordinary circumstances.                                                                                                      

For any child who may be vulnerable, have pre-existing conditions or compromised immuno-related conditions, co-parents must act immediately, prudently and jointly to protect the child – extraordinary arrangements may be required urgently, at least on a temporary basis. Every co-parent must act reasonably, responsibly and selflessly, to serve the best interests of the child, including emotionally.

If co-parents cannot mutually agree on modifying their parenting arrangements for the well-being and safety of their children, and the community at large, their Court order, separation agreement or parenting plan must govern and be followed. However, in these circumstances, co-parents must jointly, flexibly and co-operatively adjust their child’s parenting arrangements to not only protect the child, but themselves, other family members and the public generally.

Co-parents must immediately rise above their past or historical conflict, if any, to protect their child and the community at large – each has a duty to do so, legally and morally.  

Unless the safety or well-being of a child is, on a reasonable basis, placed at risk, co-parents must modify and change their parenting arrangements to achieve and comply with the containment measures undertaken by everyone, including social isolation and avoiding leaving home.

While this may be a challenge for some co-parents, it is critical that co-parents work together, flexibly, co-operatively and with a child’s best interest being paramount, to adjust parenting during this time of crisis. Every co-parent must do his or her part, like every other person in the community, to ensure that every child is socially isolated, exposed to minimal, if any, risk outside of the home, and is responsibly parented during this pandemic. 

The Superior Court in Central East jurisdiction, like many other jurisdictions, has very limited resources available currently to resolve parenting conflict. While there is limited opportunity to submit motions to the Court, they must be urgent. The Court will also be tremendously strained if facing an influx of motions by co-parents who cannot agree on taking reasonable steps to protect the health and safety of their children and for the benefit of everyone else. More information about the suspension of the Family Court is here: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

The local police agencies are already strained and operating at reduced capacity. Involving the police in a co-parenting dispute is a very last resort and must only be undertaken if absolutely necessary. The police should be contacted if the safety or well-being of any child is at risk, but co-parents must act responsibly, reasonably and in accordance with the directions, recommendations and advice by government and healthcare officials, which outline monitoring steps, preventative measures and available resources if COVID-19 exposure is a concern or potentially detected.

If you have a conflict, you could also try to contact and seek the assistance of a family law lawyer, which may also be challenging currently and may not achieve an expedient resolution in times when urgency is a necessity. 

 

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EMERGENCY FINANCIAL HELP AVAILABLE TO YOU DURING COVID-19

During this COVID-19 crisis, these emergency, financial resources or benefits are available to you from the provincial and federal governments, as of March 22, 2020:

EI BENEFITS – FOR EMPLOYEES:

If you are laid off from your employ, you should apply for EI benefits, if you qualify. Generally, the recall period is thirteen weeks. The one-week waiting period to receive EI benefits has been waived for the next six months. If you qualify for EI (many employees do, except freelancers), the typical benefit is fifty-five per cent of your pre-tax income, up to a maximum weekly benefit of $573 for up to forty-five weeks. These benefits may change further; it is important to watch the EI Web site for updates.

EMERGENCY SUPPORT BENEFIT – IF YOU DO NOT QUALIFY FOR EI BENEFITS:

Even if you do not qualify for EI benefits (such as gig workers and freelancers), you may qualify for the new “Covid-19 emergency support benefit”.  Details of this benefit continue to be released; full information is not yet available.

EMERGENCY CARE BENEFIT – IF YOU DO NOT HAVE PAID SICK LEAVE AND CANNOT ATTEND WORK DUE TO THE VIRUS:

If you do not have paid sick leave through your terms of employment, you may qualify for the new “Emergency Care Benefit”, available to any worker, including gig workers and freelancers. It is available for those who cannot attend work due to having, or caring for someone infected with, COVID-19, or those who are in self-isolation or quarantine, including if you must be absent due to the recent school closure in Ontario. 

This benefit will pay up to $900 bi-weekly for a period of up to fifteen weeks. No doctor’s note is required. You can apply in April on the Canada Revenue Agency’s and/or Service Canada’s Web site. There will also be a toll-free number available.

CANADA CHILD BENEFIT:

The CCB is a monthly, pre-tax payment for any Canadian resident having children under the age of eighteen, who otherwise qualify. This is an additional, one-month increase to the current CCB for those parents who cannot attend work to care for children who cannot attend school due to COVID-19.

If you are a parent, you may be entitled to receive a further $300, per child, as part of your next CCB benefit payment in May. For example, a two-child family initially receiving $900 monthly for CCB may, in May, be eligible to receive $1,500 in CCB payment. 

TAX FILING AND PAYMENT DEADLINES – EXTENDED:

Your deadline to file your personal income tax return is extended from April 30 to June 1, 2020. It may be extended further, depending on events in the next weeks. Despite this, many financial experts recommend you file by April 30, if you believe you may be entitled to a refund.

If you owe tax (now, or as of the extended deadline), you may defer your tax payment until August 31, 2020. This deadline may be extended further. It may make sense for you to utilize this extended deadline, particularly if you are in the gig economy, a freelancer or self-employed, and you anticipate reduced income between now and then, or potential losses.

CREDIT CARD RELIEF:

The “Big Six” Canadian banks are offering, “the opportunity for relief on other credit products”, in addition to mortgage payments. The details of this remain uncertain; the banks have not yet specified the relief specifically and what credit products may apply. Presumably it will include reduced interest rates, or potentially a payment plan in lieu of regular, monthly payments, at least temporarily until the economic conditions normalize. You should contact your bank for more information and details.   

DEFERRAL OF MORTGAGE PAYMENTS:

The “Big Six” Canadian banks are offering a six-month deferral on all mortgage payments. It is yet unclear whether you’ll be able to defer your mortgage payments on an interest-free basis, or if interest on deferred mortgage payments will accrue until the payments are made. These details are yet not known and may vary between each bank. 

RRIF MINIMAL WITHDRAWAL CHARGES:

If you are seventy-two years of age or more, you are required legally to withdraw minimum amounts from your RRIFs, which may create losses in these economic conditions. These minimum withdrawals have now been reduced, annually, by twenty-five per cent.

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COVID-19 EMERGENCY MEASURES - JOB PROTECTED LEAVE AND IMPORTANT UPDATES

The world is grinding to an unprecedented halt.  The emergence of the Novel Coronavirus (COVID-19) has shaken up governments, markets and health systems across the globe. 

In response to the rapid escalation of threat to public health, on Monday, March 16, 2020, the Federal and Ontario Government made major announcements outlining the emergency measures and funding being implemented at both the federal and provincial levels. 

On early Tuesday morning, March 17, 2020, Premier Doug Ford announced a state of emergency, ordering the closure of:

  • facilities providing indoor recreational programs;
  • organized public gatherings of fifty (50) people or more, including parades, religious services and other public events;
  • public libraries;
  • private schools as defined in the Education Act;
  • licensed child care centres;
  • bars and restaurants, except to provide takeout food and delivery services;
  • live performance theatres and cinemas; and
  • concert venues.

These closures are expected to remain in effect until March 31, 2020, with the possibility of an extension upon assessment by officials.  

Furthermore, a major announcement was made by the Ontario Government earlier this week regarding proposed statutory protections for employees affected by Covid-19.   These proposed statutory protections will be temporary, lasting the duration of the outbreak, and will attempt to address the concerns of working Ontarians who may otherwise feel the pressure of making a difficult choice between the preservation of public health and paying everyday expenses, especially for those living paycheque to paycheque. 

The purpose of the proposed protections is to ensure that workers undertaking self-isolation or quarantine due to COVID-19 are able to take a job-protected unpaid leave of absence.  These proposed protections would also extend to employees who must take leave to care for family members and, most notably, a medical note will not be required for employees seeking to take the leave under the proposed protections.  If these protections are passed they are expected to be retroactive to January 25, 2020 and so employers should take notice of these approaching protections and adjust their workplace policies and procedures accordingly.

The Federal Government has also recently implemented changes that simplify access to Employment Insurance Sickness Benefits for those affected by the novel virus.  To combat the economic consequence of the virus, EI has increased funding for Sickness Benefits which provides up to fifteen weeks of partial income replacement for those who are unable to work due to medical reasons, including quarantine.  To further assist those affected, Employment and Social Development Canada has also implemented dedicated phone lines and a priority application process.

During this unprecedented and rapidly developing public health crisis it is important that all Ontarians be informed of the ongoing implementation of Government measures and avail themselves of up-to-date expert information to ensure the protection of vulnerable individuals and the public health system.  

For general information related to COVID-19, the Ontario Government is regularly providing updated information on its website which can be found at: www.ontario.ca/page/2019-novel-coronavirus.

Individuals seeking medical assistance should contact Telehealth at 1-866-797-0000 or (locally) the HKPR District Health Unit (www.hkpr.on.ca).  In the case of emergency call 911 and alert the dispatcher of the relevant travel history and symptoms.

 

Sources:

https://news.ontario.ca/opo/en/2020/03/premier-ford-announces-job-protection-for-workers-during-the-covid-19-situation.html

https://news.ontario.ca/opo/en/2020/03/ontario-enacts-declaration-of-emergency-to-protect-the-public.html

https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

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WE LOVE TO SAY "SORRY", BUT DID YOU KNOW WE'VE MADE IT PART OF OUR LAW AND IT CAN HELP YOU LEGALLY

In Ontario, unlike any other jurisdiction to my knowledge, we’ve made the act of saying “sorry” part of our legal system, for which there are legal ramifications, both for saying it and for not saying it.

In fact, we’ve made it legislation; namely, Ontario’s “Apology Act” (the “Act”).

This is uniquely an Ontario-only legal initiative.

Before the Act, if an apology were made, such as in a defamation case, that apology could be used against the alleged defamer in Court, including to prove the defamation itself and the harm it must have caused.

Not anymore.

Now, an “apology” is legally defined as “an expression of sympathy or regret” and not “an admission of fault or liability in connection with the matter to which the words or actions relate.”

Before the Act was passed, an “apology” statement could technically be construed as an admission of your guilt or wrongdoing.

The Act is great Ontario law, because now we can say “sorry” without fear, legally speaking.

In fact, in a defamation case, for example, making an apology often impacts the legal case, or least may reduce the damages awarded by the Court.

Making an apology impacts other types of cases, too, legally, so there is always advantage in considering making an apology and, if so, the maker need not be worried that it would legally be held against he or she – it can only help. 

The Act is fairly short and straightforward – the key parts are highlighted below. 

Apology Act, 2009

S.O. 2009, CHAPTER 3

Consolidation Period: From April 23, 2009 to the e-Laws currency date.

No Amendments.

Definition

1. In this Act,

“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate. 2009, c. 3, s. 1.

Effect of apology on liability

2. (1) An apology made by or on behalf of a person in connection with any matter,

(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

(c) shall not be taken into account in any determination of fault or liability in connection with that matter. 2009, c. 3, s. 2 (1).

Exception

(2) Clauses (1) (a) and (c) do not apply for the purposes of proceedings under the Provincial Offences Act. 2009, c. 3, s. 2 (2).

Evidence of apology not admissible

(3) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter. 2009, c. 3, s. 2 (3).

Exception

(4) However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration. 2009, c. 3, s. 2 (4).

Criminal or provincial offence proceeding or conviction

3. Nothing in this Act affects,

(a) the admissibility of any evidence in,

(i) a criminal proceeding, including a prosecution for perjury, or

(ii) a proceeding under the Provincial Offences Act; or

(b) the use that may be made in the proceedings referred to in subsection 2 (3) of a conviction for a criminal or provincial offence. 2009, c. 3, s. 3.

Acknowledgment, Limitations Act, 2002

4. For the purposes of section 13 of the Limitations Act, 2002, nothing in this Act,

(a) affects whether an apology constitutes an acknowledgment of liability; or

(b) prevents an apology from being admitted in evidence. 2009, c. 3, s. 4.

5. Omitted (provides for coming into force of provisions of this Act). 2009, c. 3, s. 5.

6. Omitted (enacts short title of this Act). 2009, c. 3, s. 6.

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COVID19 - A WORKPLACE CHECKLIST

Despite we are informed there is low risk to us, publicly, precautionary steps should be taken. 

_____________________________________

"The spread of the 2019 novel coronavirus — the virus responsible for COVID-19 — is now anticipated to reach pandemic levels. Officials from the Public Health Agency of Canada reiterate that the risk of a mass outbreak in Canada remains low, but have encouraged and enforced precautionary measures.

Employers should continue to be vigilant in ensuring a safe and healthy workplace. In addition to our previous client alert, employers should be mindful of the following checklist:

1. Appoint one or more coordinators who will be responsible for tracking and communicating the latest developments of COVID-19. The coordinator(s) should have the authority to make or advise on emergency decisions such as office closures and meeting cancellations.

  • According to the size of the employer’s organization, a cross-functional team may be necessary with designated individuals to handle issues such as employee health and safety, medical/personal leaves and accommodations, communications, and compliance.

 

2. Routinely follow reliable public health authorities for news and guidelines on prevention, symptom identification, and treatments as they become available.

Reliable sources include:

3. Review or develop emergency contingency plans with appropriate disease prevention measures.

  • Contingency plans are designed to deal with business disruptions, and often include protocols for emergency communication, decision-making, and working with limited staff.
  • Consider realistic and permissible cost-cutting strategies early on; be forward-looking as the economy braces for COVID-19.
  • Employers may already have a contingency plan that is unique to their environment, but should be aware of best practices specific to epidemics.
  • Common strategies unique to disease prevention can include:
    • directing employees to contact their doctor and local public health units if they believe they have been exposed to COVID-19
    • placing posters or flyers around the workplace that encourage employees to stay home if they are sick, and that outline best practices on hand hygiene, coughing and sneezing, and symptom identification
    • providing tissues and hand sanitizer dispensers
    • routine cleaning of frequently-touched surfaces, including countertops and door knobs

4. Where possible, expand leave and work-from-home policies that are flexible and non-punitive so that employees do not feel pressured to come to work if they feel sick or believe they have been exposed.

  • Employers will be able to require this if they have objective knowledge, or a reasonably held belief, that an employee is displaying symptoms or has been exposed to COVID-19.
  • As always, ensure that employees are aware of their benefits and entitlements in the event that they or a family member fall ill.
  • In screening for infection risks, be cautious of the laws around privacy and human rights.
  • For more information, review our previous alert on COVID-19.

5. Cancel or limit non-essential and work-related travel, especially to areas cautioned against by health authorities. Arrange for alternative methods of communication with business contacts in affected areas.

  • Monitor the travel advisories in Canada and in other countries that the employer organization may have offices in. Follow reliable public health authorities for information on travel restrictions, including:
  • Travelers returning to Canada from areas under advisory may be required to self-isolate and contact their local public health unit to report their arrival and/or symptoms. Any requirements to do so will be on Canada’s updated COVID-19 page.

6. Be aware of special reporting requirements for designated individuals under Ontario’s Health Protection and Promotion Act, and Personal Health Information Protection Act.[1]

  • Certain individuals may be required to report information on people they suspect have, or could have, COVID-19 to Ontario’s chief medical officer. This reporting obligation applies to individuals such as (but not limited to):
    • regulated health professionals
    • hospital administrators
    • laboratory operators
    • school principals
    • superintendents of stipulated institutions
  • Employers and/or employees who operate in these positions should ensure there are reporting protocols in place if applicable.

7. Document why and how certain measures are used to prevent the spread of COVID-19 in the workplace, and who was affected by them.

  • Be mindful of cultural, medical, and other grounds when making decisions about disease prevention in the workplace. This includes how and who employers question about exposure to COVID-19, and how employers use information gathered.
  • In all cases, ensure compliance with human rights, privacy, and employment laws.

For more information, review our previous alert on COVID-19.

[1]E.g. HPPA ss. 25-29; PHIPA ss. 39-40."

This excellent article was written by Jordan Arthur Kirkness and Susan MacMillan, Baker McKenzie, sourced from Lexology.com on March 10, 20120.  

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IF A PERSON IS INCAPABLE OF MAKING HEALTH CARE DECISIONS, HERE'S WHO WILL MAKE THOSE DECISIONS

What happens when a person in Ontario becomes disabled or incapacitated, to the extent that the person cannot make decisions about his or her own health care or treatment? 

In short, someone else is authorized or appointed to make those decisions for the incapacitated person, subject to certain rules and duties imposed by law. 

However, we have a hierarchy of decision-making power in Ontario.

Here is an excellent article by Sydney Osmar of Hull & Hull explaining this hierarchy and how personal health care decisions are regulated for incapable people:  

"Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker." 

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