CKL SENIORS - NEW OAS AND GIS FEDERAL 'TOP UP' PAYMENTS ANNOUNCED TODAY.

Today the federal Government announced that seniors eligible for the Old Age Security (OAS) pension and the Guaranteed Income Supplement (GIS) will receive their special one-time, tax-free payment during the week of July 6.

Through this measure and others, the government is providing nearly $900 more for single seniors and more than $1,500 for senior couples, on top of their existing benefits, to help these vulnerable Canadians with extra costs during the pandemic.  

Seniors eligible for the OAS pension will receive a payment of $300, and those also eligible for the GIS will receive an additional $200, for a total of $500.

Allowance recipients will also receive $500.

Since the start of the pandemic, the Government of Canada has introduced a number of measures to support seniors, including those most vulnerable.

This includes a one-time special payment through the Goods and Services Tax (GST) credit in April, which provided an average of $375 to single seniors and $510 to senior couples, helping over 4 million low- and modest-income seniors. We are also investing an additional $20 million in community organizations that offer services to seniors, and have reduced minimum withdrawal requirements for all types of registered retirement income funds (RRIFs) by 25 per cent for the year 2020. In addition, we have taken steps to make sure seniors would continue to receive their GIS benefits if they were unable to submit their 2019 income information on time.

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LAYOFFS IN ONTARIO - THE NEW DEAL FOR THE PANDEMIC - CANNOT BE A TERMINATION UNDER ONTARIO'S LEGISLATION. WHAT YOU NEED TO KNOW.....

CHANGES TO THE ESA DUE TO COVID-19

On May 29, 2020, the Ontario government enacted Regulation 228/20 – Infectious Disease Emergency Leave (“Regulation”) under the Employment Standards Act, 2000 (“ESA”).

It offers Ontario employers impacted by COVID-19 with temporary relief from the ESA’s rules on temporary layoffs, termination, severance and constructive dismissal, by deeming an employee to be on unpaid, job-protected Infectious Disease Emergency Leave (“IDEL”) in specific, but not all, circumstances. 

These changes apply solely to non-unionized employees, including assignment employees who are employed by temporary help agencies.

Deemed to be on IDEL 

As opposed to being placed on a temporary layoff, an employee who does not perform their duties because their hours of work have been temporarily reduced or eliminated due to COVID-19 during the “COVID-19 Period” is deemed to be on IDEL.

The “COVID-19 Period” is defined under the Regulation as the period beginning on March 1, 2020 and ending six weeks after the state of emergency in Ontario comes to an end.

IDEL is an unpaid, job protected leave which came into effect under the ESA on March 19, 2020. It has certain conditions to qualify, one of which is a need to provide childcare to children due to Ontario's school closures. .

Under the ESA, an employee on a statutory leave of absence is entitled to continue to participate in benefit plans for the duration of the leave.

However, this new Regulation provides an exception - as of May 29, 2020, if an employee ceased participation in the employer’s benefit plan, or the employer ceased contributions to a benefit plan, the employer is exempt from the general requirement that it continue benefits during an ESA leave.

Employees will not be considered on IDEL if, at anytime on or after March 1, 2020, the employer:

  • terminates/severs the employee’s employ;
  • closes its entire business at an establishment; or
  • has given or gives notice of termination to an employee and the employee resigns in response as specifically provided under the ESA.

Similarly, employees will not be considered on IDEL if, before May 29, 2020, the employee had been:

  • deemed terminated or severed under the ESA because of their layoff; or
  • constructively dismissed and had resigned within a reasonable period.

Where an employee has been given written notice of termination, if the employer and the employee agree, the notice of termination can be withdrawn and the employee can be deemed to be on IDEL.

Reduced Hours/Wages

For an employee whose hours of work have been temporarily reduced or eliminated, or whose wages have been temporarily reduced, for reasons related to COVID-19 during the COVID-19 Period, the usual ESA termination and severance provisions related to layoffs will not apply.

That is, these employees will not be considered to be laid off for the purposes of the ESA during the COVID-19 Period.

The usual ESA rules remain in place if:

  • the employee is or was laid off as a result of a complete closure of the employer’s business at an establishment; or
  • before May 29, 2020, the employee had already been deemed terminated or severed under the ESA because of their layoff.

The Regulation also deems certain circumstances not to constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period, and are for reasons related to COVID-19:

  • a temporary reduction or elimination of an employee’s hours of work.
  • a temporary reduction in an employee’s wages.

However, employees may still claim that such a reduction/elimination constitutes a termination if the employee resigned within a reasonable period before May 29, 2020.

Existing ESA Complaints

Subject to a few exceptions, complaints filed with the Ministry of Labour claiming that a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages, constitutes a termination or severance of employment are deemed not to have been filed if the reduction or elimination occurred during the COVID-10 Period for reasons related to COVID-19.

Exemption - where an employee’s employ was deemed terminated before May 29, 2020 because they were laid off for a period longer than a temporary layoff under the ESA.

If so, the employee would still be able to file an ESA complaint if they were not paid their termination and severance (if applicable) entitlements.

In addition, where an employee was constructively dismissed and had resigned within a reasonable period before May 29, 2020, that claim would be allowed to proceed.

The Regulation also addresses how to determine if an employee’s hours of work or wages have been reduced.

For example, where an employee has a regular work week, the employee’s hours of work will be considered reduced if the employee works fewer hours in the work week than they worked in the last regular work week before March 1, 2020.

Where the employee does not have a regular work week, the average number of hours worked in the 12-week period before March 1, 2020 is to be used for comparison purposes.

Important Notes

While this Regulation appears to creatively provide temporary protection to Ontario employers, remember  the pre-existing ESA rules, including the deemed termination provisions for exceeding the temporary layoff period, will apply once the COVID-19 Period expires, unless the Ontario government further intervenes.

Furthermore, for any layoffs that preceded March 1, 2020 and were COVID-19-related, the COVID-19 Period effectively stops the clock on the layoff. 

This is a temporary measure - anticipate the usual rules for lay off will apply again at the end of the defined Covid-19 Period, including the 13-week, rolling threshold for temporary layoffs under the ESA.   

Lastly, note that this Regulation does not impact an employee's right to claim constructive dismissal at common law, which remains preserved and an option. The Ontario government has yet to decree otherwise.   

The Regulation is here: 

https://www.ontario.ca/laws/regulation/r20228

 

 

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FEDS - NON MEDICAL MASKS USE REQUIRED IN AIR, SHIP, TRUCKING AND OTHER TRANSIT - EXPANDED USE.

The federal Government has expanded the required use of face coverings on planes, trains, ships and transit to reduce the spread of COVID-19. 

Effective Thursday, June 4 at midday, airline flight crew and airport workers will be required to wear non-medical masks, in addition to the existing requirement for passengers. 

Railway operators will have to notify passengers to wear a face covering when physical distancing of two metres from others can't be maintained, or as requested by the rail companies. 

All railway workers will be required to be given face coverings and ensure they are worn according to risk or when mandated by local authorities. 

Marine workers will be advised to possess a face covering that will be worn depending on the workplace risk, when physical distancing can't be maintained or where local authorities require it. 

Practices for the use of personal protective equipment, including masks, will be established for trucking, motor coaches and transit in collaboration with provinces, territories and industry. 

 

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CKL FRONTLINE WORKERS - DO YOU QUALIFY FOR THE TEMPORARY PANDEMIC PAY? ANSWERS HERE.......

The Ontario government has published a list of employees eligible for its temporary pandemic pay program. 

To provide additional support for frontline workers fighting COVID-19, the government is providing temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020.

Temporary pandemic pay is designed to support eligible full-time, part-time and casual employees. It does not apply to management.

To receive pandemic pay, you must work in both an eligible:

  • role (i.e. be an eligible worker)
  • workplace

Eligible workplaces and workers are those listed below, by sector.

Health care

To be eligible for pandemic pay you must be an eligible worker (full-time, part-time or casual) who works in an eligible workplace providing in-person publicly-funded services.

Eligible workplaces

  • All hospitals in the province providing publicly-funded services, including small rural hospitals, post-acute hospitals, children’s hospitals and psychiatric hospitals
  • Home and community care settings, including community-based mental health and addictions

Eligible workers

  • Personal support workers including home support workers, home help workers, community support workers, residential support workers, homemakers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    • porters
    • cooks, food service, food preparation
    • custodians, cleaning/maintenance and environmental services staff, sterilization and reprocessing staff
    • housekeeping
    • laundry
    • security, screeners
    • stores/supply workers, receivers, department attendants
    • hospital ward and unit clerks
    • client facing reception/administrative workers, schedulers, administrative staff working in home and community care or community-based mental health and addictions
    • community drivers
    • community recreational staff/activity coordinators
  • Developmental services workers
  • Mental health and addictions workers: counsellors/therapists, case workers and case managers, intake/admissions, peer workers, residential support staff, Indigenous/cultural service workers
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health and infection prevention and control nurses

Long-term care

Eligible workplaces

  • Long-term care homes (including private, municipal and not-for-profit homes)

Eligible workers

  • All non-management publicly funded employees and workers in eligible workplaces (full-time, part-time and casual)

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

  • All non-management employees working on site in licensed retirement homes (full-time, part-time and casual), excluding hours worked to provide extra care services purchased privately

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities and shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licenced children’s residential sites
  • Directly operated residential facility – Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite and drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (such as developmental service workers, staff in licenced children’s residential sites, intake and outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains
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REMOVING DISABILITY BARRIERS IN THE CKL - THE NEW, FEDERAL ENABLING ACCESSIBILITY FUND. WHAT YOU NEED TO KNOW......

The federal government has now announced a call for proposals under the Enabling Accessibility Fund ("EAF") – small projects component.

The EAF provides funding for projects that make Canadian communities and workplaces more accessible for persons with disabilities.

The application process has been streamlined, and flat rates have been introduced to reduce the burden on applicants and expedite the process.

Applications are due by July 13, 2020.

The government's announcement is here: 

https://www.canada.ca/en/employment-social-development/news/2020/06/newly-modernized-enabling-accessibility-fund-issues-a-call-for-proposals.html

Applications for this new program can be found here: 

https://www.canada.ca/en/employment-social-development/programs/enabling-accessibility-fund.html?utm_campaign=EnablingAccessibilityFund&utm_source=SocialMedia%5CDdn%5CBanners&utm_medium=VanityUrl&utm_term=en&utm_content=canada-ca_accessibility-fund

 

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FINALLY......ONT. GOV. DECREES CANNOT SUE IF YOU ARE LAID OFF DUE TO PANDEMIC - BETTER LATE, THAN NEVER.

Finally.........

Yesterday, the Ontario government published a new regulation which, among other things, deems temporary reductions or cessations in hours due to COVID-19, or any temporary layoffs due to COVID-19, which began on or after March 1, 2020 not to trigger constructive dismissal claims or the deemed termination and severance provisions under the Employment Standards Act, 2000 (“ESA”). 

The regulation deems employees who are not performing work (e.g., those on a temporary layoff under the ESA) on or after March 1, 2020 to have been on an Emergency Leave under the ESA. 

The regulation also provide that employees that were on layoff under the ESA have been, instead, on this Emergency Leave.

Though leaves of absence under the ESA generally require employers to continue employee participation in applicable pension plans, life insurance plans, accidental death plans, extended health plans and dental plans, the regulation does not require such participation or employer contributions if an employee who is not performing work (e.g., who is on a temporary layoff) is not participating in these plans/the employer was not making contributions as of May 29, 2020.

 

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IS WORKING-AT-HOME GOING TO BE PERMANENT OR MORE REGULAR, EVEN AFTER THE PANDEMIC? LEGAL TIPS - WHAT YOU NEED TO CONSIDER.

Working from home – will it be more permanent or, at least, regular, even after the pandemic?

Stay-at-home work may be part of the “new normal” in the City of Kawartha Lakes for many businesses and organizations.

If so, there are a few legal issues to consider and plan for, not only to minimize liability for employers, but to enrich the work-at-home arrangement for both employers and employees.

Transitioning to remote work conditions involves some changes, legally.

HEALTH AND SAFETY ISSUES:

Although there may be some debate amongst legal professionals, arguably Ontario’s Occupational Health and Safety Act (the “Act”) extends to remove working arrangements. If not, expect the provincial government to soon verify that is the case.

Employers have a statutory duty to take all reasonable steps to ensure safety in the workplace, including for those working at home. Similarly, applicable federal legislation imposes the same obligation. To minimize exposure to liability, employers should assume this duty extends to those employees who are asked to, or who are permitted to, work at home in future.

Ontario has recently promulgated health and safety guidelines for operating a business during the pandemic, which apply to work-at-home arrangements, as may be relevant. Those should be reviewed and considered by both employers and employees. 

To incorporate work-from-home arrangements in future, including following the pandemic, employers should review and revise their workplace policy to ensure they: 

  • require employees conduct their own assessment of the workplace and, after doing so, promptly report any potential risks/hazards;

  • explore and address ergonomic issues relating to employees’ workplaces, including seating, keyboarding and monitor viewing;

  • establish the procedure for notifying and contacting the employer and evacuating the home or other remote work area to a safe location in the event of an emergency;

  • address the procedure for reporting promptly any work-related incidents or injuries;

  • facilitate a fairly regular, scheduled "check-in" process with the employer and, if appropriate, co-workers;

  • provide for a risk management/emergency procedure if an employee cannot be contacted, or communication is otherwise disabled; and

  • provide for suitable and appropriate training for both supervisors and those working from home.

ONTARIO HUMAN RIGHTS CODE ISSUES:

COVID-19 bring more attention to the potential need to accommodate employees, particularly regarding family status and disability-related issues. The most common issues are:  

  • employees with young children being forced to balance full-time work with child care and educational responsibilities, while schools are closed and without the usual services  provided by child care centres, schools, home maintenance, etc.;

  • a need for additional time off due to illness, or a need to care for family members who are ill; and

  • a need to work remotely due to concern of exposure or for other family (household) members who may have existing medical conditions or are elderly, which may make them more vulnerable to COVID-19.

In Ontario, employers must be mindful of the COVID-19 legal implications, including:

  • Ontario now has a job-protected, unpaid infectious leave of absence, including for COVID-19;

  • Ontario’s Human Rights Code requires employers to adopt individualized approaches to employees' requests for accommodation - there is no one-size-fits-all, cookie-cutter, standard approach to accommodation requests and each request must be determined on the basis of the relevant circumstances affecting the individual employee and the employer; and

  • employers’ obligations may vary or differ depending on whether the accommodations requested are short-term, medium-term, or permanent - permanent accommodation requests should not be rebuked merely because they are permanent in nature; rather, employers may be obliged to provide permanent accommodation if doing so falls short of "undue hardship."

REMEMBER BULLYING, INTIMIDATION AND HARASSMENT:

Harassment, bullying and discrimination occur with virtual interactions, too.

Employers are required to take reasonable steps to prevent and address such conduct under Ontario’s human rights and occupational health and safety legislation.

Accordingly, employers must review and ensure their workplace violence, bullying and harassment policies address "virtual" conduct and include a process for complaints and investigations that can take place outside of the regular workplace environment.

WORKPLACE POLICY:

For those employers intending to continue work-at-home arrangements, including after the pandemic, they should establish a workplace policy delineating the protocol, practice and procedures for:

  • the existing arrangements (during the pandemic);

  • when schools and child care centres reopen ultimately;

  • when social/physical distancing measures are relaxed, or removed; and

  • the post-pandemic period, when restrictions no longer exist and the “new normal” applies.

Set expectations for employees sooner, rather than later, despite that it may be difficult to do so amidst the uncertainty of the pandemic.  Things will change; developments will materialize that were not reasonably predicted. Workplace policies may need to be modified, or changed, to accommodate unforeseen developments during and after the pandemic.

Employers should develop and implement a flexible, scalable remove working policy, which addresses:  

  • the meaning of "remote work";

  • the employer's organizational polices, rules and practices that apply to remote work employees;

  • eligibility, approval and duration of a remote work arrangement;

  • specific remote work arrangements that may need to incorporate a distinct written remote work agreement between the employee and the employer;

  • specific responsibilities of the manager/supervisor for the work-at-home arrangement;

  • remote work training that may be necessary, if any;

  • feedback, performance reviews and evaluations;

  • technology and communications, including setting up employees with the necessary computer and peripheral equipment at home and the costs related thereto;

  • work hours and schedule;

  • overtime issues and procedure;

  • emergency measures;

  • performance, work quality and professional standards and expectations;

  • information and personal information security and measures to prevent unauthorized disclosure and privacy breach protocols; and

  • restrictions and limits on engaging in personal affairs/business during the work day.

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HOW TO RE-OPEN - COVID-19 STEPS TO TAKE - RETAIL STORES, OFFICES, ETC. IN THE CKL - BEST PRACTICES TO MAXIMIZE SAFETY AND MINIMIZE LIABILITY.

As we gradually re-open the CKL, some sectors, including retail stores and professional offices, have no health and safety guidelines available yet from the Ontario government. 

While the guidelines for the five, key sectors announced to date overlap substantially and, effectively, apply to any public business space, it is important for all business spaces to know and adhere to the proper containment measures, including because there is so much discussion about a 'second wave' currently. 

Below is an excellent article on procedures and steps that should be considered for any public business space, including offices and retail stores, while those businesses should also review and implement the Ontario health and safety guidelines recently published, to the extent they provide for additional measures not specifically identified by this article. 

"As we better understand the challenges associated with COVID-19, attention has turned to reopening the Canadian economy and retuning to work. This, in turn, raises questions about the steps that employers should be taking to train their employees and adapt their physical workplaces in order to continue operating (if they did not shutdown during the pandemic) or return to work (if they did shutdown) in a COVID-19 world.

As employers across the country consider these challenges, one thing is absolutely clear—careful planning is required to accomplish the competing but essential goals of maximizing protection from the spread of COVID-19 in the workplace for employees, customers and others, while at the same time minimizing disruption to the employer's business operations. Every business is unique, and there is no one business continuity or return to work plan that is recommended for all. Instead, employers must consider a range of issues in the context of their particular business needs. The purpose of this blog is to address some of the issues that employers should have in mind as they develop and adapt their business continuity and/or return to work plans. Bennett Jones is available to assist you and your business as you adjust to the "new normal" of COVID-19.

Risks Associated with Operating a Business During COVID-19

In response to the spread of COVID-19, governments across Canada issued public health directives and emergency orders, including closure orders for many businesses in non-essential industries. As the economy gradually reopens, these closure orders are being removed. However, the timing for reopening of specific businesses varies from industry to industry, and from jurisdiction to jurisdiction. Employers who were required to shutdown due to COVID-19 should understand when their business, in their province or jurisdiction, is permitted to reopen, and must not reopen until they are legally permitted to do so. Failure to comply with a closure order can lead to significant liability for businesses including, for example in Ontario, a fine of up to $10,000,000 under the Ontario Emergency Management and Civil Protection Act, and personal liability for directors and officers of the business.

Employers should also consider how the risks associated with COVID-19 affect their obligation to take reasonable steps to ensure a safe and healthy workplace under applicable occupational health and safety legislation. In particular, employers who fail to take adequate steps to prevent the spread of COVID-19 in the workplace may be subject to inspections, compliance orders and significant fines imposed by occupational health and safety officials. There is also the potential for civil liability where the spread of COVID-19 in the workplace leads to illness or injury for employees and third parties who do not have workers' compensation coverage. Finally, employers must be mindful of their obligations under existing employment agreements, employment policies and (if they are unionized) collective agreements, and ensure their business continuity and/or return to work plans take these obligations into account.

In addition to the legal risks associated with carrying on business during COVID-19, there are operational risks as well. In particular, if an employer fails to take adequate steps to prevent the spread of COVID-19 in the workplace, the risk of an outbreak among employees increases. This, in turn, could necessitate the adoption of even stronger preventative measures, or reclosing parts of the employer's business, or the whole business, for an additional period of time. On the other hand, if the anti-COVID-19 measures adopted by an employer are too restrictive or onerous, the employer's business operations may suffer as a result.

Preliminary Steps Before Developing a Business Continuity or Return to Work Plan

Before an employer develops its business continuity or return to work plan, there are a number of preliminary steps that should be taken.

  1. First and foremost, determine who the decision makers are that will be responsible for designing and implementing the plan. Steps involved in this process should include:

    • plan preparation, which includes assessing your workplace and developing an operational/return to work plan that clearly demonstrates you have taken "every reasonable precaution in the circumstances" to prevent the spread of COVID-19;

    • plan implementation, which includes developing an effective communication and training strategy for employees;

    • monitoring compliance with, and the effectiveness of, the business continuity/return to work plan, which includes regular review and consideration of applicable government and public health guidance; and

    • responding to issues and problems as they arise and adapting the business continuity/return to work plan as necessary to meet unforeseen challenges.

    If a COVID-19 response team or committee has previously been set up, it may be best suited to take on responsibility for the business continuity/return to work plan as well.

  2. Consider if the decision makers responsible for your business continuity/return to work plan have the necessary expertise, or if they require the assistance of experts such as a medical professional, occupational health and safety specialist, communications expert, design consultant or other technical specialist. In addition, consider if anyone other than the designated decision makers should be consulted about the business continuity/return to work plan, such as, for example, a joint health and safety committee or, in the case of a unionized workplace, possibly the union.

  3. Consider what resources are available to monitor the latest updates regarding COVID-19, and business operation/return to work guidelines for employers. For example, federal and provincial governments have all established dedicated COVID-19 websites and online resources that are regularly updated with public health and related information. Guidance for employers in each province and jurisdiction to limit the spread of COVID-19 in the workplace has now been posted to these locations. In addition, federal, provincial and some municipal public health authorities have established websites and links that are regularly updated as information becomes available. Most provincial occupational health and safety authorities have established similar online resources. Lastly, many industry associations have developed or are preparing return to work recommendations and best practices specifically tailored to their industry. All of these resources should be regularly consulted and considered by the designated business continuity/return to work decision makers for your business.

  4. Finally, consider timing for the ramp-up or reopening of your business. In particular, determine when your business is legally permitted to reopen. For employees who have been laid off, consider how they will be recalled and confirm whether any advance notice of recall is required in your jurisdiction. Also consider whether all employees will return to the workplace at the same time, or if the return to work will occur in stages, with some employees returning before others. For example, will some employees who are able to work or continue working remotely from home be permitted or required to do so, while other employees return to the physical workplace? If a staggered return to work is contemplated, consider which employees will return first and whether this creates any constructive dismissal or other issues under existing employment contracts. Also, if there is a collective agreement with a union, review the recall and seniority provisions to determine if they comply with the business continuity/return to work plan, or if changes are necessary in consultation with the union.

Issues to Consider in Your Business Continuity or Return to Work Plan

There are a number of issues that should be considered in any business continuity or return to work plan. These include the following:

Communications and Training

Consider how the business continuity/return to work plan, and employee responsibilities under the plan, will be communicated to employees. For example, will there be any communication with employees regarding the plan before they return to the physical workplace? How will questions or feedback from employees be handled? Will you hold regular health and safety meetings to review COVID-19 related procedures? Will any signage be needed in the workplace to ensure employees understand their obligations in particular circumstances? With respect to training, consider whether anything is required so that employees know their obligations in terms of sanitizing, physical distancing, use of PPE and other matters. Consider whether managers require any special training to administer the business continuity/return to work plan. Finally, make sure your plan states that you will continue to adapt and make changes as necessary, and communicate those changes to employees.

Self-Reporting Requirements and Privacy Considerations

Ensure clear guidelines are established so that employee know their responsibility to self-report a positive COVID-19 diagnosis for themselves or their family members, or where the employee or a family member exhibits symptoms of possible COVID-19, or where the employee has come into contact with someone else with COVID-19, or where the employee is subject to travel-related quarantine restrictions, etc. Consider if employees should be required to perform a self-assessment or complete a questionnaire prior to attending at work, or provide any other information to the employer such as COVID-19 test results. Consider if other forms of assessment such as temperature checks will be carried out at work. Consider if employees will be required or encouraged to download a government approved contact tracing app onto their cell phone, and make information from the app available to the employer on request. Finally, consider what privacy protections are necessary in order to deal with any COVID-19 related personal information that is received by the employer, and whether there are any privacy limits on the information that can be collected.

Sanitizing the Workplace

Implement a thorough cleaning of the physical workplace before employees return to work, and communicate this to employees. Consider if the initial cleaning should be carried out by your regular cleaning contractor, or if a specialized service provider is necessary. Once employees return to the physical workplace, consider what cleaning schedules and protocols are necessary. Consider whether cleaning and disinfecting supplies such as alcohol wipes, hand sanitizer dispensers and wash stations will be provided for employees, if the availability and location of these supplies is adequate, and what rules will be enforced concerning their use by employees and third parties present in the physical workplace.

Personal Protective Equipment (PPE)

Consider whether employees will be required to use PPE, and if so which employees, in what circumstances and what specific PPE. For example, will employees who take an elevator to and from the office each day be required to wear a face mask during their elevator trips? Will PPE be provided or made available to employees required to use it, and if so what standard of PPE will be considered adequate (for example, will an N95 mask be considered necessary in certain circumstances, as opposed to another form of face mask). Will employees be permitted to use their own PPE if they prefer and, if so, are there any standards applicable here?

Regular Hours of Work, or Shifts and Staggered Start Times?

Will regular hours of work be maintained for all employees, or will shifts or staggered start times be required in order to reduce the number of employees at work at a given time, and promote physical distancing? If staggered start times or shifts are necessary, review any union collective agreements to determine whether the proposed work schedule is in compliance, or if discussions with the union will be necessary. Consider your obligations under applicable employment standards and human rights legislation if there are any employees for whom the proposed shift or start times create a particular hardship due to family obligations or other factors.

Entry and Exit Points

Consider entry and exit points to the physical workplace, and whether these access points are controlled by the employer or a third party such as a landlord. If the landlord or other third party controls the access points, consult with them to determine what their plan is to reduce to the risk of COVID-19 exposure for people using the access points, and whether the proposed measures are too lax or too onerous in the circumstances. For example, will there be limits on the number of people allowed to use the elevator at one time, and are those limits practical in the circumstances? How will lineups and bottlenecks at access points (for instance, people waiting to use the elevator) be dealt with, and how will physical distancing be maintained in these circumstances? Consider if the number of access points to the workplace should be restricted so that the number and identity of people in the workplace can be better monitored and controlled. Consider how any such measures comply with fire code and other safety regulations. Consider if any special monitoring equipment such as temperature checking devices will be used at access points, and what rules apply to that. Finally, consider how deliveries and other shipping and receiving issues will be dealt with, and whether items delivered to the workplace should be sanitized and how.

Physical Distancing of Work Stations

Consider whether the physical separation of work spaces is adequate and whether any changes to the physical layout of the workplace are advisable or possible. Consider whether other measures besides reconfiguring the workplace are possible, such as reducing the density of employees in particular areas, use of plexiglass screens or other physical separation equipment or the use of directional signage and floor markings.

Gathering Areas

Consider common gathering areas such as reception areas, lunch rooms and meeting rooms, and whether any measures are required to promote physical distancing in these spaces. Consider whether all common or gathering areas in the workplace will be open, or whether some will remain closed.

Frequent Touchpoints and Common Equipment

Consider frequent touchpoints such as door handles, light switches and elevator buttons, and what steps are necessary to ensure they remain clean and disinfected. Should measures such as propping open doors be considered, and how will this work in terms of safety and security concerns, fire code regulations and other considerations? What steps will be taken to ensure that common equipment such as coffee machines, cups and glasses, microwave ovens, vending machines, water coolers and photocopiers remain clean and disinfected, and will all such equipment remain in use or will some of it be temporarily removed or shut off?

HVAC Systems

Are there any changes or improvements to the HVAC system that should be considered to improve ventilation and air circulation in the workplace?

Third-Party Access

Consider whether any measures are necessary to limit or control third-party access to the physical workplace. Consider what physical distancing, sanitization, PPE or other requirements will be imposed on third parties present in the workplace, and what steps will be taken if a third party refuses to comply with these requirements. Consider if there are any contractor employees present on site (for example cleaning personnel), what COVID-19 related rules apply to them, whether the rules are adequate and who is responsible for enforcing those rules. Consider if there are any alternatives to in-person third-party meetings that should be promoted or mandated through the use of technology (such as Zoom conferences and other virtual meeting options).

Changes to Employment Policies

Consider whether there is anything in the business continuity or return to work plan that requires your existing employment policies to be amended, or new polices to be adopted, and how those policy changes will be communicated to employees. In the case of a unionized workplace, consider whether the business continuity/return to work plan complies with any collective agreements, and whether consultation with the union is necessary or advisable in relation to the plan.

Consequences for Failure or Refusal to Comply with the Business Continuity or Return to Work Plan

Consider what disciplinary or other consequences will be applied to employees who fail or refuse to comply with the business continuity or return to work plan. For example, will employees be sent home in these circumstances, and if so will they be paid or unpaid while they are away? When considering the issue of discipline, take into consideration whether the employee's action constitutes misconduct, or if it reflects a legitimate concern involving human rights, privacy or the right to refuse unsafe work under occupational health and safety legislation. Also consider what steps will be taken where a third party or contractor employee fails or refuses to comply with the business continuity or return to work plan.

Response to a Positive Diagnosis or Potential Exposure to COVID-19 in the Workplace

Consider in advance what steps you will take if an employee or their family member tests positive for COVID-19, or is exhibiting symptoms of possible COVID-19, or has been exposed to someone else with COVID-19. Will self-quarantining or testing be required in these circumstances, and what happens if the test result comes back positive or negative? What steps will be taken with respect to contract tracing among other employees, and who will be responsible for that? Will the business remain open while these steps are taken, or are there any additional protective measures that will be implemented in these circumstances? How will a positive test result in the workplace be communicated to other employees, bearing in mind the privacy rights of the employee with confirmed or suspected COVID-19?

Response to Employees Who Believe that Returning to Work will Cause or Exacerbate a Disability or Health Risk

Some employees may believe that returning to work at this time will cause or exacerbate an existing disability such as anxiety, an autoimmune disorder or respiratory problems, or lead to some other increased risk to health and safety. Consider in advance how you will handle these concerns, including who such concerns should be directed to, what medical information will be required from the employee, whether any job protection exists under applicable employment standards legislation and whether the employee would qualify for short- or long-term disability benefits in these circumstances. Also consider whether any human rights issues arise and, if so, whether the employee can be accommodated by working from home.

The list of issues above is not exhaustive, and other factors may also need to be considered depending on the nature of the employer's business....." 

Credit: 

 Carl Cunningham and John R. Gilmore, Bennett Jones LLP, published via Lexology on May 21, 2020 

 

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UPDATE ON THE COMMERCIAL RENT SUBSIDY FOR CKL SMALL BUSINESSES - APPLY NOW. WHAT YOU NEED TO KNOW.

The federal government announced today that application documents and updated criteria for Canada Emergency Commercial Rent Assistance (CECRA) for small businesses are now available, and that the program will be opened for applications beginning on May 25.

This program will provide forgivable loans to eligible commercial property owners, who in turn will give a rent reduction of at least 75 per cent for April and May (retroactive), and June, to their small business tenants.

Applications will be accepted through the Canada Mortgage and Housing Corporation website beginning on May 25, and application documents can be accessed now.

Additional Information About CECRA: 

  • CECRA will provide forgivable loans to qualifying commercial property owners, whether they have a mortgage on their property or not. The loans will cover 50 per cent of three monthly rent payments that are payable by eligible small business tenants who are experiencing financial hardship during April, May, and June.

  • The loans will be forgiven if the qualifying property owner agrees to reduce the small business tenants’ rent by at least 75 per cent under a rent reduction agreement, which will include a term not to evict the tenant while the agreement is in place. The small business tenant would cover the remainder, up to 25 per cent of the rent.

  • Impacted small business tenants are businesses that are paying less than $50,000 per month in gross rent in a given location, with annual revenues of less than $20 million (at the ultimate parent level), and who have experienced at least a 70 per cent drop in pre-COVID-19 revenues.

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NON-MEDICAL MASKS OFFICIALLY RECOMMENDED TODAY AS "ADDITIONAL MEASURE" - PHYSICAL DISTANCING REMAINS ESSENTIAL. YOUR UPDATE.

Today federal public health officials are now officially recommending that people wear non-medical masks in situations where physical distancing isn’t possible.

After initially advising against wearing non-medical masks, federal health officials said in April that people who don’t have symptoms of COVID-19 could wear non-medical masks when in public as “an additional measure” to protect others — but officials didn’t present it as an official recommendation.

Updated recommendations on the use of non-medical masks amid the ongoing pandemic will be posted on the government’s website later today, Canada’s chief medical officer of health said Wednesday.

Dr. Theresa Tam has said some evidence suggests that COVID-19 can be spread by people who aren’t showing symptoms.

Tam, however, has emphasized that wearing a mask — whether medical or non-medical — does not replace staying two metres apart from people outside your household and maintaining proper hand hygiene.

Health officials on Wednesday said those measures must continue through the spring and summer months and urged that “staying home when sick is a must.”

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SUPPORT FOR OUR ELDERLY AND ISOLATED - N.I.C.E. - FREE SESSIONS - CHECK IT OUT.

Did you know about the NATIONAL INITIATIVE FOR THE CARE OF THE ELDERLY (NICE)?

NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults, both in Canada and abroad.

Its members represent a broad spectrum of disciplines and professions, including geriatric medicine, gerontological nursing, gerontological social work, gerontology, rehabilitation science, sociology, psychology, policy, law and older adults themselves and their caregivers.

Joining NICE is only a click away. 

NICE partners with both the Canadian government and the University of Toronto, among others. 

They run a program called TALK 2 NICE, mostly supporting our elderly and other socially isolated people during these challenging times.

The program offers no-charge outreach and counselling to older adults and those with disabilities.

A person may join and call in to the program – they will be connected with social workers or social work students.

The toll free number is: 1 (844) 529-7292.

A session can also be booked online at http://www.nicenet.ca.

Sessions of varying times may be scheduled, including up to thirty minutes, or simply a “Friendly Check In”.

Socially isolated elderly and disabled people may benefit from his support, especially during the pandemic. 

NICE has trained volunteers offering positive, supportive advice and assistance, including referral to more helpful resources, if needed.

NICE also offers guidance on whether to relocate a family member from institutional care during the pandemic.

This is a great resource to those who may be isolated, lonely or otherwise in need of trained, positive support. 

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CKL BUSINESSES - ONT. GOV. BEING CRITICIZED FOR ALLOWING RE-OPENING WITHOUT PROPER TESTING IN PLACE - GET READY FOR THERMAL TESTING IN YOUR WORKPLACE. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

 
 
 
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CKL BUSINESSES - ELIGIBILITY FOR THE CEBA $40,000 LOC NOW EXPANDED - FIND OUT IF YOU QUALIFY - WHAT YOU NEED TO KNOW TODAY.

Today the federal government announced an expansion to the eligibility criteria for the Canada Emergency Business Account (CEBA), to now include many owner-operated small businesses.

The changes to the CEBA are intended to allow more Canadian small businesses to access interest free loans that will help cover operating costs during a period when revenues have been reduced, due to the pandemic.   

The program will now be available to a greater number of businesses that are sole proprietors receiving income directly from their businesses, businesses that rely on contractors, and family-owned corporations that pay employees through dividends rather than payroll.

To qualify under the expanded eligibility criteria, applicants with payroll lower than $20,000 would need:

  • a business operating account at a participating financial institution
  • a Canada Revenue Agency business number, and to have filed a 2018 or 2019 tax return.
  • eligible non-deferrable expenses between $40,000 and $1.5 million. Eligible non-deferrable expenses could include costs such as rent, property taxes, utilities, and insurance.

Expenses will be subject to verification and audit by the Government of Canada. Funding will be delivered in partnership with financial institutions. More details, including the launch date for applications under the new criteria, will follow in the days to come.

Notably to date, over 600,000 small businesses have accessed the CEBA, and the government will work on potential solutions to help business owners and entrepreneurs who operate through their personal bank account, as opposed to a business account, or have yet to file a tax return, such as newly created businesses.

More Key Information About The CEBA: 

  • $40,000 line of credit or loan, depending on financial institution
  • Government-backed (guaranteed)
  • Intended to be used for funding operational expenses, including commercial rent and utilities
  • Must have payroll between $20,000 and $1.5 million in 2019
  • $10,000 is non-repayable if balance is repaid by Dec. 31, 2022
  • New businesses, self-employed and those who pay themselves by dividends may not qualify
  • Tips for applying here: http://wardlegal.ca/31586368607013

 

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FAMILY COURT ISSUES ANOTHER STERN WARNING TO WARRING PARENTS (AND THEIR LAWYERS). A MUST-READ FOR ANYONE FACING FAMILY COURT LITIGATION.

The Family Court has recently issued another stern caution and warning to those embroiled in Family Court litigation, including the lawyers who represent them. 

This important guidance is in Alsawwah v. Afini, 2020 ONSC 2883, at paragraph 108, and is a must-read for every person who finds himself or herself in the challenging landscape of the Superior Court - Family Division: 

"In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

1.            Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.

2.            Nor are we swayed by rhetoric against the other party that verges on agitprop.

3.            Our decisions are not guided by concerns of marital fidelity. A (nonabusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.

4.            Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that  emanates from that party or their counsel.

5.            Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.

6.            Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.

__________________

Note by us: Sub-Rules 14(18) and (19) read:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.  O. Reg. 114/99, r. 14 (18).

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.  O. Reg. 114/99, r. 14 (19).

_________________________

7.            A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.

8.            Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.

9.            Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.

10.          One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.

11.          While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to Do." 

 

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CKL FAMILIES - CANADA CHILD BENEFIT INCREASED TODAY. WHAT YOU NEED TO KNOW.

The Canada Child Benefit (CCB) will be increased as of July. 

This additional tax-free support is intended to assist families to pay for things such as food, clothes, and activities they can do together at home.

The increase will be in place for the 2020-21 benefit year, and will raise the maximum benefit to $6,765 per child under age 6, and $5,708 per child aged 6 through 17.

This increase is in addition to the one-time special CCB payment announced by the federal government earlier this month, to help families deal with the added pressures of COVID-19.

On May 20, 2020, this special measure will give families currently receiving the CCB an additional $300 per child with their May payment, and deliver almost $2 billion in extra support across the country to help families during this challenging period.

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CKL BUSINESSES - FEDERAL WAGE SUBSIDY EXTENDED AND EXPANDED. WHAT YOU NEED TO KNOW.

The Canada Emergency Wage Subsidy (the “CEWS”) has been both extended and expanded: 

  • extended for another 3 months to August 29, 2020; and

  • expanded to include eligibility for the following groups:

    • partnerships that are up to 50% owned by non-eligible members;

    • Indigenous government-owned corporations that are carrying on a business, as well as partnerships where the partners are Indigenous governments and eligible employers;

    • registered Canadian amateur athletic associations;

    • registered journalism organizations; and

    • non-public colleges and schools, including institutions that offer specialized services, such as arts schools, driving schools, language schools, or flight schools.

The government announced further proposed changes to the CEWS which will require legislation, including:

  • providing flexibility for employers of existing employees who were not regularly employed in early 2020, such as seasonal employees;

  • ensuring that the CEWS applies appropriately to corporations formed from the amalgamation of two predecessor corporations; and

  • better aligning the treatment of trusts and corporations for the purpose of determining CEWS eligibility.

These new changes will hopefully be legislated very soon. 

 

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REOPENING THE CKL - WHO? WHEN? HOW? ANSWERING YOUR QUESTIONS

May 15 - The Ontario government announced the following businesses will be permitted to open, with restrictions, effective Tuesday May 19, 2020 at 12:01 a.m. E.D.T.:

  • "Retail services that are not in shopping malls and have separate street-front entrances with measures in place that can enable physical distancing, such as limiting the number of customers in the store at any one time and booking appointments beforehand or on the spot.

  • Seasonal businesses and recreational activities for individual or single competitors, including training and sport competitions conducted by a recognized national or provincial sport organization. This includes indoor and outdoor non-team sport competitions that can be played while maintaining physical distancing and without spectators, such as tennis, track and field and horse racing.

  • Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments.

  • Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance.

  • Lifting essential workplace limits on construction.

  • Allowing certain health and medical services to resume, such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries, all based on the ability to meet pre-specified conditions as outlined in A Measured Approach to Planning for Surgeries and Procedures During the COVID-19 Pandemic."

In addition, effective Saturday, May 16, 2020 at 12:01 a.m. E.D.T., the following seasonal services and activities will be permitted to reopen according to a government press release:

  • "Golf courses will be able to open, with clubhouses open only for washrooms and restaurants open only for take-out.

  • Marinas, boat clubs and public boat launches may open for recreational use.

  • Private parks and campgrounds may open to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract.

  • Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal."

The regulation required to permit these operations was not yet published by 5:00 p.m. E.D.T. on May 14, 2020.

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NEW (FREE) ONLINE DRIVER'S LICENCE CHECK SERVICE NOW AVAILABLE

You can now check the status of your Ontario driver's licence online and for free. 

The Ontario government has eliminated the $2 fee and is modernizing the online Driver's Licence Check service.

You can check for free on the validity of your driver's license. 

The improvements to the online service will make it easier to use, including the ability to easily check a driver's licence by scanning the card on a mobile device. The changes will also reduce burden on businesses by expanding the number of licence checks entered at one time from nine to 100.

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CKL FARMERS - MORE FINANCIAL HELP - APPLY NOW. WHAT YOU NEED TO KNOW.

The governments of Canada and Ontario have jointly announced they are investing up to $2.25 million to help farmers better protect employees and ensure the continued supply of healthy food products for consumers during the COVID-19 outbreak.

Through the Canadian Agricultural Partnership (the Partnership), the federal and provincial governments are launching the second intake of the Agri-food Workplace Protection Program to help farmers enhance health and safety measures to prevent the spread of the virus. The funding will be used for initiatives like purchasing personal protective equipment, enhanced cleaning and disinfection, and redesigning workstations.

Support is also available for farmers who experience unexpected costs for housing and transportation as a result of a COVID-19 outbreak among on-farm employees.

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is now accepting applications and will expedite the approval process to help support workplace health and safety in the agri-food sector. Eligible applications will be received and assessed on a continuous basis, while funding is available.

Today's announcement is in addition to the $2.25 million investment announced last week to help provincially-licensed meat processors implement COVID-19 health and safety measures.

The Agri-food Workplace Protection Program builds on previous actions taken by the federal and provincial government to support the agri-food sector. This includes $1 million to help Ontario farmers, food processors and other agri-food supply chain partners address labour shortages, as well as $2.5 million to improve e-business opportunities for Ontario's agri-food sector.

Since June 2018, both the federal and provincial governments have committed support to approximately 2,500 projects through the Partnership to help eligible Ontario farmers, processors, businesses and sector organizations innovate and grow.

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CKL SEPARATED PARENTS - DID YOU KNOW YOU CAN SET UP AND ADJUST CHILD SUPPORT ONLINE DURING THE PANDEMIC? NO FAMILY COURT REQUIRED. SEE IF YOU QUALIFY - WHAT YOU NEED TO KNOW.

Did you know you can potentially set up, or adjust, child support payments online, without having to endure the Family Court process? 

How it works

To set up or update child support online, you and the other parent or caregiver may have to provide your income information. It is used to calculate the amount of child support to be paid.

When one parent sets up or updates child support online, the other parent will be notified by mail and must respond online within 25 calendar days. Both parents may also be required to complete a consent form to allow the Canada Revenue Agency to share their income information with the service.

Once you and the other parent or caregiver have provided the necessary income information, both of you will be mailed a Notice of Calculation or Recalculation. This document includes the new child support arrangement, including the amount to be paid. It will be enforced just like a court order.

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

If the other parent or caregiver does not respond

If the other parent or caregiver does not respond to the request, the service may automatically update your child support based on the information you provided.

This will only happen if:

  • you set up your existing child support in court or online

  • your child support case is not currently before the court

  • you are not changing the special expenses covered in your child support

If the parent or caregiver who did not respond pays child support, the service may assume that their income has increased.

Who can use the service

You can set up or update child support online if:

  • one parent or caregiver lives with the child or children 60% of the time

  • you don’t currently live with the other parent or caregiver

But, if you’re setting up child support, the other parent or caregiver can deny your request to use the online service. In this case you will have to use the court process or arrange child support in a written agreement.

Talk to the other parent or caregiver before submitting an application to make sure that they agree to use this service.

You cannot set up or update child support online if:

  • either parent or caregiver, or any of the children, live outside of Ontario

  • any children are over 17.5 years old or married

  • there is split or shared custody of the child or children

  • the child support order being updated was based on undue hardship or imputed income

  • the parent or caregiver who currently pays or will pay for child support:

    • is self-employed

    • earns more than $150,000 or less than $12,000 annually

    • earns income in cash

    • is a partner or majority shareholder of a business

    • earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)

If you are the parent or caregiver who pays child support you can choose whether to provide your income through tax information or pay stubs.

If you are the parent or caregiver who receives child support, and you don't think the other parent’s income can be accurately shown by either pay stubs or tax information, you should not use this service.

Required documents

Before you start setting up or updating child support online, make sure you have:

  • your Social Insurance Number or Temporary Tax Number

  • a current mailing address for the other parent or caregiver

  • contact information for the person responsible for payroll at your workplace (if you’re the person who currently pays or will pay child support)

  • an electronic copy of your current court order or separation agreement, or information from your current Notice of Calculation or Recalculation

If you didn’t file your taxes last year, you will also need either:

  • your three most recent pay stubs, or

  • the most recent statement of income from employment insurance, social assistance, a pension, workers compensation or disability payments

Start using the service

Start using the online service to set up or update child support.

Set up or update child support

Cost

There is a non-refundable $80 fee each time you use the service, whether you’re setting up or updating child support.

Accepted forms of payment

Visa, Mastercard or Interac® Online

No refunds for inaccurate information

You will not be refunded the $80 fee if the application cannot be processed due to inaccurate information. This includes when the other parent or caregiver replies that information is not accurate in the original application.

Fee waiver

You may be eligible to have the application fee waived, if your household (you, your spouse and children) are considered low-income. You can apply for the fee waiver in the online application.

Consulting a lawyer

Consult a lawyer if you’re still unsure about setting up or updating child support online. If you can’t afford a lawyer, you can find out if you qualify for legal aid.

Contact the Child Support Service

For more information about setting up or updating child support online, please call the Child Support Service Contact Centre at 1-866-656-7753.

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CKL BUSINESSES - IF YOU DO NOT QUALIFY FOR OTHER RELIEF, OR YOU NEED MORE FINANCIAL HELP, APPLY NOW FOR THE NEW RELIEF AND RECOVERY FUND. NOW OPEN FOR APPLICATIONS. WHAT YOU NEED TO KNOW.

The Government of Canada has announced a new national $962 million Regional Relief and Recovery Fund (RRRF), which provides $675 million in financing support to small- and medium-sized enterprises (SMEs) that are unable to access existing COVID-19 measures and $287 million to support rural business' and communities with access to capital through Community Futures Development Corporations (CFDCs).

FedDev Ontario will deliver $213 million in RRRF funding throughout southern Ontario. Southern Ontario CFDCs will deliver $39.4 million in funding to support rural businesses in the communities they serve.

Through the new RRRF, there is available: 

Through the new Regional Relief and Recovery Fund, Canada’s six RDAs are delivering:

  • $675 million in support to SMEs that are unable to access other federal COVID-19 relief measures; and
  • $287 million for the national network of Community Futures Development Corporations (CFDCs) to provide funding and other support to small businesses in rural communities; 
  • in southern Ontario, FedDev Ontario will invest $213 million by providing interest-free repayable contributions (loans) to help support business’ fixed operating costs, where revenues have been affected by the COVID-19 pandemic. The RRRF seeks to support southern Ontario SMEs to address gaps in or supplement other federal relief measures, as well as complement those provided by other levels of government. In particular, the RRRF seeks to provide support to southern Ontario SMEs that do not qualify for, or have been rejected from, current Government of Canada COVID-19 relief measures, or are experiencing ongoing funding needs despite having accessed other funding measures.

For assistance: 1-866-593-5055.

Qualify and apply here: 

https://www.feddevontario.gc.ca/eic/site/723.nsf/eng/home

 

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RETURNING TO WORK PART-TIME OR REDUCED HOURS? BE CAREFUL WITH YOUR CERB. AVOID REPAYMENT. WHAT YOU NEED TO KNOW.

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

  • Available between Mar. 15 and Oct. 3, 2020

  • Must be 15 and Canadian resident

  • Must have declared $5,000 total income in preceding 12 months or in 2019 (including by self-employment)

  • 7, 4-week eligibility cycles or claiming periods

  • Does not need to be consecutive claiming periods – maximum of 16 weeks (4 months) in total during entire period of program

  • Taxable benefit (not deducted at source; must be claimed in next personal income tax filing)

  • When first applying, cannot earn more than $1,000 from other sources for 14 or more consecutive days within the 4-week claim period

  • For future claim periods, cannot earn more than $1,000 income during the claim period

  • Cannot qualify if laid off, but earns income from other work or on reduced hours

  • Cannot voluntarily withdraw or quit – must qualify for an approved statutory leave of absence under the Employment Standards Act or work disruption must be related to COVID-19

  • Cannot be topped up by employers, unless the top up is not more than $1,000 in any 4-week claim period

  • Replaces EI regular benefits if unemployment occurs on or after Mar. 15, 2020

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

  • Note: payment of accrued vacation time if a lay off or termination could disqualify CERB (if more than $1,000 within 14 days before initial application or during the subsequent claim period)

  • Note: if recalled during a CERB claim period, resulting in income more than $1,000, may be required to repay the CERB during that claim period

 

Examples:

 

  • Salaried employee (including self-employed) – eligible if stops working for reasons related to COVID-19 (also eligible for CEWS and CEBA)

  • Sole proprietor – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

  • Own a corporation and paid by dividends, not salary – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

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CKL IS GRADUALLY REOPENING - WHAT CAN EMPLOYERS REQUIRE EMPLOYEES PROVIDE TO BE ENTITLED TO TAKE THE NEW INFECTIOUS DISEASE EMERGENCY LEAVE?

As we gradually reopen, what can an employer require an employee to provide before the employee may take the new infectious disease emergency leave in Ontario? 

An employer may require an employee to provide evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is eligible for infectious disease emergency leave but employers cannot require an employee to provide a certificate from a physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.

What is considered reasonable in the circumstances will depend on all the facts of the situation, such as:

  • the duration of the leave

  • whether there is a pattern of absences

  • whether any evidence is available and the cost of the evidence

If it is reasonable in the circumstances, evidence may take many forms, such as a:

  • travel documentation showing that the employee had travelled to a country for which quarantine or isolation is being advised

  • a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)

  • a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act

  • a note from an employee's day care provider indicating that the childcare centre was closed because of a designated infectious disease

Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.

For example, if an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period, if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

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NEW MEASURES/FUNDING TO PREVENT SEXUAL ASSAULT, GENDER-BASED VIOLENCE AND HUMAN TRAFFICKING IN THE CKL. WHAT YOU NEED TO KNOW DURING "SEXUAL ASSAULT PREVENTION MONTH"

New Ontario Funding for Victims of Gender-Based Violence and Human Trafficking During COVID-19

The government recently announced new measures to support people experiencing or at risk of sexual assault, gender-based violence and human trafficking during COVID-19:

"May is Sexual Assault Prevention Month, an important time to recognize those on the frontlines who are working each and every day to prevent sexual assault, gender-based violence and human trafficking. These professionals are dedicated and compassionate individuals who give selflessly to support those most in need.

Clearly, these extraordinary times are creating extraordinary challenges. Due to the COVID-19 outbreak there has been an increased risk of gender-based violence for many individuals who have been staying home and practicing physical distancing for weeks now.

It is crucial that Ontarians who have experienced or are at risk of sexual assault, gender-based violence or human trafficking have continued access to counselling and other critical services they need to stay safe, heal and rebuild their lives.

To further support those who need and rely on these services, our government is investing $1 million to help frontline agencies adapt to remote service delivery and ensure continued operation during COVID-19.

This funding will assist counselling service providers like the Assaulted Women's Helpline, who also work the Seniors Safety Line, which will receive $200,000 to develop text and online chat platforms, set up toll-free lines, provide on-demand interpreter services and hire additional staff to respond to increased call volume.

Along with the $40 million relief fund for residential service providers and emergency funding for victim services we have already provided, this response fund will ensure a range of critical supports remain available at this time. This is in addition to our government's large investment of $148 million in relief funding to ensure municipalities and social service providers can better respond to COVID-19.

Together with our partners across Ontario, our government remains committed to preventing sexual assault, gender-based violence and human trafficking, as well as supporting victims, survivors and those at risk of these crimes. Again, I would like to express my deep appreciation to those on the frontlines who are working tirelessly to ensure that people experiencing sexual and gender-based violence receive the support they need in this uncertain and difficult time."

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MORE FEDERAL SUPPORT TO BUSINESSES - BRIDGE LOANS, NOT BAILOUTS.

May 12 - The federal government announced additional support to mid-size and large businesses. The support is bridge financing and loan guarantees, rather than bailout funds, including: 

[1] expanding the Business Credit Availability Program to mid-sized companies with significant financing needs, including loans of up to $60-million per eligible company, and guarantees of up to $80-million; and

[2] establishing a Large Employer Emergency Financing Facility ("LEEFF") to provide bridge financing to eligible large employers whose needs are not being met through conventional financing mechanisms.

 The LEEFF program will be open to large for-profit businesses (with the exception of financial sector businesses) as well as certain not-for-profit businesses (e.g., airports) whose annual revenues are generally $300-million or more. While many LEEFF details remain unknown, the government stated that the following "guiding principles" will apply:

  • protection of taxpayers and workers:  
  • fairness; and
  • timeliness.

Businesses must be seeking financing of about $60-million or more and have significant operations or workforce in Canada in order to qualify for LEEFF. 

Businesses involved in active insolvency proceedings are ineligible. 

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CKL BUSINESSES - NAVIGATING THE REOPENING - YOUR ROADMAP TO SUCCESS - TIPS, TRAPS AND WHAT YOU NEED TO KNOW

Ontario’s three-phase framework for Re-opening Ontario after COVID-19 (the "Framework") outlines general methods and guidelines to follow to reportedly safely and efficiently contain the spread of COVID-19, while re-opening businesses, services and public spaces:

Stage 1 (in progress)

Stage 2

Stage 3

  • opening select workplaces that can meet current public health guidelines
  • allowing essential gatherings of a limited number of people
  • opening some outdoor spaces
  • continued protections for vulnerable populations
  • opening more workplaces with significant mitigation plans
  • opening more public spaces
  • allowing some larger public gatherings
  • continued protections for vulnerable populations

 

  • opening all workplaces responsibly
  • relaxing restrictions on public gatherings
  • continued protections for vulnerable populations

 

No definitive timelines have been announced, particularly for phases two or three.

BUSINESSES GRADUALLY REOPENING IN PHASE ONE

As of May 4, subject to complying with "strict safety guidelines", these businesses were permitted to reopen:

  • garden centres and nurseries with curbside pick-up and delivery only;

  • lawn care and landscaping;

  • additional essential construction projects that include:

    • shipping and logistics;

    • broadband, telecommunications, and digital infrastructure;

    • any other project that supports the improved delivery of goods and services;

    • municipal projects;

    • colleges and universities;

    • childcare centres;

    • schools; and

    • site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;

  • automatic and self-serve car washes;

  • auto dealerships, open by appointment only;

  • golf courses may prepare their courses for the upcoming season, but not open to the public; and

  • marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

As of May 6, "easing restrictions" for retail stores and "essential construction" was initiated, as follows and subject to "applicable health and safety guidelines":

  • May 8, 2020, at 12:01 a.m. – garden centres and nurseries will be able to open for in-store payment and purchases;

  • May 9, 2020, at 12:01 a.m. – hardware stores and safety supply stores will be permitted to open for in-store payment and purchases; and

  • May 11, 2020, at 12:01 a.m. – retail stores with a "street entrance" can begin offering curbside pickup and delivery.

In addition, "expanding essential construction" is permitted to allow below-grade multi-unit residential construction projects (such as apartments and condominiums). Existing above-grade projects may also continue.

“STRICT” HEALTH AND SAFETY GUIDELINES

Eligible retailers preparing for in-store purchases are expected to operate under the same health and safety guidelines that apply to retailers in the essential services sector, including grocery stores and pharmacies.

Eligible businesses offering curbside pickup and delivery services are expected to meet strict health and safety guidelines comparable to those applying to the essential services sector.

These “strict safety guidelines” expected to be followed are guided by resources made available by Ministry of Labour in Ontario (the “MOL”) and various provincial Health and Safety Associations (“HSAs”) in Ontario, including guidelines published by:

  • the Infrastructure Health and Safety Association (IHSA) for the construction, electrical and utilities, aggregates, natural gas, ready-mix concrete and transportation sectors;

  • the Public Service Health and Safety Association (PSHSA) for hospitals, nursing and retirement homes, residential and community care facilities, universities and colleges, school boards, libraries and museums, municipalities, the provincial government and its agencies and fire and paramedic services;

  • the Workplace Safety North (WSN)  for the forestry, mining, smelting, refining, paper, printing and converting sectors; and

  • the Workplace Safety and Prevention Services (WSPS) for the agriculture, manufacturing and service sectors.

The MOL has also released "guidance notes" for employers in five sectors:

The MOL has also published sector-specific posters for both employers and employees to promote infectious disease prevention strategies in certain sectors.

These posters and sector-specific health and safety guidelines can be downloaded and printed from the MOL’s Web site.

NEXT STEPS FOR ELIGIBLE BUSINESSES

  • "strict compliance" with the new health and safety directives is required for employers to reopen and operate – at the very least, employers should:

    • review, develop and implement appropriate training on industry-specific health and safety requirements, pursuant to the Framework;

    • post in the workplace any relevant or applicable posters or guidelines that are published by the MOL and/or applicable HSAs;

    • conduct periodic reviews and audits of materials and guidelines published by the MOL and applicable HSAs to ensure ongoing compliance and up-to-date training; and

    • maintain records of any and all COVID-19-specific training provided to employees;

  • these new guidelines are not "limited" to businesses that have recently re-opened, or are intending to re-open; rather, they will impact businesses that have continued to operate throughout Ontario’s State of Emergency, either as a result of being deemed essential, or as a result of not having been ordered to close – these businesses should continue to conduct their operations as they have to date, ensuring ongoing compliance with any relevant or applicable health and safety guidelines developed by Ontario;

  • whether reopening or continuing to operate, employers remain statutorily required to "take every precaution reasonable in the circumstances" for the protection of workers and other individuals at the workplace;

  • employers should take steps to achieve and, whenever possible, exceed the basic protections required by the guidelines and occupational health and safety legislation in Ontario to safeguard workers and minimize any risk of non-compliance with health and safety requirements; and  

  • failing to comply with any existing or newly promulgated health and safety requirements may lead to significant penalties, including fines, compliance orders, stop-work orders, risk of prosecution and/or imprisonment.  

Despite all of this, things may change. Nothing is certain during the pandemic. Be watchful for ongoing updates and modifications, particularly if infections may increase during phase one. 

CKL businesses should proactively ensure that they have taken all reasonable steps to adhere to applicable guidelines, emergency orders and other potential sources of liability, including:

  • compliance with health and safety protocols; and

  • adhering to any applicable employment standards, human rights protections and employee privacy regulations, particularly regarding the collection, use and potential disclosure of personal health information.

 

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COVID-19 - THE LAW DOES NOT TOLERATE RACISM DURING THE PANDEMIC - BE PREPARED FOR SIGNIFICANT DAMAGES. WHAT YOU NEED TO KNOW.

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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CKL SENIORS - MORE FINANCIAL SUPPORT TODAY - $500 TAX FREE + ADDITIONAL BENEFITS. WHAT YOU NEED TO KNOW.

Since the start of the COVID-19 pandemic, the Government of Canada has invested $1.3 billion in a one-time special payment through the Goods and Services Tax (GST) credit in April, being an average of $375 for single seniors and $510 for senior couples.

Investment was also made in community organizations that provide practical services to Canadian seniors, including the delivery of groceries and medications.

Today the federal government announced this additional support to seniors: 

  • additional financial support of $2.5 billion for a one-time tax-free payment of $300 for seniors eligible for the Old Age Security (OAS) pension, with an additional $200 for seniors eligible for the Guaranteed Income Supplement (GIS) - a total of $500 to individuals who are eligible to receive both the OAS and the GIS, and will help them cover increased costs caused by COVID-19.

  • expanding the New Horizons for Seniors Program with an additional investment of $20 million to support organizations that offer community-based projects that reduce isolation, improve the quality of life of seniors, and help them maintain a social support network.

  • temporarily extending GIS and Allowance payments if seniors’ 2019 income information has not been assessed, intended to ensure that the most vulnerable seniors continue to receive their benefits when they need them the most. To avoid an interruption in benefits, seniors are encouraged to submit their 2019 income information as soon as possible and no later than by October 1, 2020.

 

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CKL BUSINESSES - THE WAGE SUBSIDY IS EXTENDED BEYOND JUNE - WHAT YOU NEED TO KNOW TODAY

May 8 - the federal Government announced the Canada Emergency Wage Subsidy (the "CEWS") will extend beyond June, 2020. More information to be announced. 

What you need to know about the CEWS: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
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CKL BUSINESSES - AS YOU PIVOT AND DO MORE ONLINE , PROTECT YOURSELF FROM YOUR EMPLOYEES' BREACHING PRIVACY OR DATA - WHAT YOU NEED TO DO

During the pandemic, businesses and organizations in the CKL are exploring new, online delivery and operations.

With this new way to do so business, the risk of privacy and data breach increases.

Every business should have a privacy breach protocol policy, for example, delineating the steps that will promptly be taken in the event of a breach of personal information.

But did you know a business can also be held vicariously liable for an employee who, intentionally or otherwise, breaches the privacy of a customer or client?

Ontario Courts have found employers liable for vicarious liability for an employee's wrongdoing, including breach of data, if the risk of the breach was heightened because, for example, the employee was authorized to access the data without sufficient supervision or, despite not being authorized to access the data, the employee had sufficient opportunity to access the data because of the employer’s failure to put in place appropriate security controls.

As the “new normal” continues to develop, CKL businesses and organization should take steps to protect against this potential for vicarious liability, including by:

  • limiting employee access to personal and other highly confidential information on a need-to-know basis;
  • adopting policies that outline the specific bases on which personal and other highly confidential information may be accessed, used, transferred or disclosed by employees;
  • implementing a protocol for supervision of employees with access to sensitive personal and other highly confidential information;
  • putting in place technological safeguards that prevent employees from downloading customer information, other than to the extent necessary, and create alerts for supervisors when sensitive personal and other highly confidential information is accessed;
  • ensuring availability of logs recording access to personal and other highly confidential information and implement protocols for reviewing these logs for compliance with expected access and use; and
  • for highly sensitive information, consider implementing a protocol requiring two employees to sign-off to obtain access.

To manage potential exposure from vicarious liability involving a compromise of personal information, organizations should identify risks that are particular to their organization and tailor the risk management plan accordingly. 

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REOPENING THE CKL - WE HAVE A SYMPTOMATIC EMPLOYEE OR CUSTOMER IN OUR STORE OR OFFICE - WHAT SHOULD WE DO? WHAT YOU NEED TO KNOW.

Employers in the CKL should develop and implement an infection prevention and control plan that includes procedures for responding when an employee, customer, or other individual present in the workplace becomes ill with symptoms of COVID-19.

The plan should include:

(i) procedures for isolating and transporting the individual home if they begin showing symptoms at the workplace; and

(ii) steps to take if an employee or other individual tests positive for COVID-19 shortly after attending the workplace.

Employers in the CKL must also report  COVID-19 transmission in the workplace to the our local health unit. 

Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers and visitors and sent home.

If the employee is able to be tested, the employee should not be allowed to return to the workplace until the employee tests negative for COVID-19 and has completed any self-isolation period mandated by public health authorities.

If the employee cannot be tested, the employee should not return to the workplace until the employee has completed any mandated self-isolation period and is free of symptoms.

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REOPENING THE CKL - CHEAT SHEET - SAFETY AND REPORTING REQUIREMENTS FOR CKL BUSINESSES DURING COVID-19. TIPS AND RECOMMENDATIONS TO MINIMIZE LIABILITY AND MAXIMIZE PUBLIC SAFETY.

To help stop the spread of COVID-19, everyone should comply with requirements under the Occupational Health and Safety Act and with associated regulations and public health directives issued by the Chief Medical Officer of Health.

Protecting yourself and your co-workers:

Coronaviruses are spread through close contact with others. Here are some helpful tips to help prevent the spread of germs at home or in the workplace:

  • Wash your hands often with soap and water or alcohol-based hand sanitizer.
  • Sanitize often, between each transaction if possible.
  • Wash or sanitize hands after making or receiving deliveries.
  • Sneeze and cough into your sleeve.
  • If you use a tissue, discard immediately and wash your hands afterward.
  • Avoid touching your eyes, nose or mouth.
  • Avoid contact with people who are sick.
  • Stay home if you are sick.
  • Avoid high-touch areas, where possible, or ensure you clean your hands afterwards.
  • Where possible, wear gloves when interacting with high-touch areas. Do not touch your face with gloved hands. Take care when removing gloves. Ensure you wash your hands after removing them.
  • Wash your clothes as soon as you get home.
  • If you are ill: notify your supervisor immediately, complete the self-assessment and follow the instructions.

Physical distancing (two meters):

As advised by the Chief Medical Officer and public health officials physical distancing is required to control the spread of COVID-19 (coronavirus).

Here are some tips employers can use to help ensure physical distancing in the workplace:

  • Minimize contact with customers.
  • Maintain a safe distance while handing goods and taking payment, minimize or eliminate handling of cash and eliminate at-the-door payment methods.
  • Assign staff to ensure customers are maintaining safe physical distances in congested areas like entrances/exits and check-outs.
  • Add floor markings and barriers to manage traffic flow and physical distancing.
  • Do not accept re-usable bags or containers that are to be handled by your staff.
  • Install barriers between staff and customers; this can include plexiglass or markings on the floor to ensure at least 2 meters between customer and cashier.
  • Stagger start times, shifts, breaks, and lunch times.
  • Restrict the number of people on-site and where they are assigned to work.
  • Control site movement (by limiting the potential for workers to gather).
  • Limit the number of people working in one space at the same time.
  • Minimize the number of people using each piece of equipment in instances where sharing equipment cannot be avoided.
  • Hold meetings in an outside or large space.
  • Limit unnecessary on-site interaction between workers, and with outside service providers.

Workplace sanitation:

Coronaviruses are spread person to person through close contact. While employers always have an obligation to maintain clean worksites, that obligation is under sharper focus due to COVID-19.

Here are some tips for employers to use:

  • Provide ways to properly clean hands, by providing access to soap and water or alcohol-based hand sanitizer.
  • Provide employees with hand sanitizer for their use only.
  • Have all employees and visitors wash their hands thoroughly with soap and water before entering the workplace and after contact with surfaces others have touched.
  • Include handwashing before breaks and at shift changes.
  • Provide a safe place for customers to dispose of used sanitizing wipes and personal protective equipment.
  • Clean washroom facilities.
  • Sanitize commonly-touched surfaces or areas such as entrances, counters, washrooms and kitchens.
  • Sanitize shared equipment (where sharing of equipment cannot be avoided).
  • Post hygiene instructions in English or French and the majority workplace language so everyone can understand how to do their part.
  • Introduce more fresh air by increasing the ventilation system’s air intake or opening doors and windows. Avoid central recirculation where possible.

Adjust onsite and production schedules:

Lowering staff levels on job sites may be required to maintain appropriate physical distancing.  Employers should look at how they can adjust their production schedules to support physical distancing, where possible.

Here are some tips for employers to follow:

  • Limit the number of workers to critical number by staggering work schedules.
  • Consider job rotation.
  • Postpone projects and tasks that don’t need to be done now.
  • Reschedule any unnecessary visits to the workplace by supply chain partners, vendors or others who don’t need to be there now.
  • Ensure sanitation of sites and workspaces.
  • Carry out site planning to facilitate appropriate physical distancing between workers.
  • Establish rules for any work that requires workers within two metres of each other. This could include full personal protective equipment.
  • Offer work-site mobility and transportation, including hoist operations.

Track your workforce:

Due to the delayed period of COVID-19 (coronavirus) spread, it is important to track where workers have been. If an employee tests positive for COVID-19, the local public health unit will ask employers to provide information on where the employee worked as well as the contact information of any other employee who may have been exposed. Employers will provide that information and Public Health Units will respond.

Reporting illness:

The symptoms of COVID-19 are similar to other illnesses, including the cold and flu. At this time, it is recommended that any worker who has symptoms related to cold, flu or COVID-19 be sent home. Public Health Ontario has provided helpful guidance on self-monitoring and self-isolation.

In addition, employers should advise these workers to complete the online self-assessment or call either:

  • Telehealth: 1-866-797-0000
  • their primary care provider (for example, family physician)

CKL Health Unit Order:

On April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under the Health Protection and Promotion Act. This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19
  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test
  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or
  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • Isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.
  • Remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 
  • During the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.
  • Keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.
  • Seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.

Workers with COVID-19:

If you believe one of your workers may have COVID-19 or has tested positive for the disease, you should conduct a risk assessment.

Based on the results, ministry inspectors may require the employer to:

  • inform co-workers who were exposed and send those workers home for two weeks
  • ask those workers to self-isolate and self-monitor and report any COVID-like illness to their employer
  • shut down the job site while the affected workplace and equipment are disinfected
  • implement other measures based on the advice of public health officials

Getting information on infection prevention and control:

Employers can contact local public health units for questions on workplace infection prevention and control related to COVID-19 infections.

Share information:

It is important that all parties in a workplace communicate their roles and responsibilities. Employers must ensure health and safety policies are updated and posted for all workers to see. Using industry resources, including the Workplace Safety and Prevention Services (WSPS), will improve on-site understanding.

Post your policies:

All employers must post and communicate COVID-19 policies to workers.

These policies should cover how the workplace will operate, including, but not limited to:

  • the sanitization of the workplace
  • how workers report illnesses
  • how to ensure physical distancing
  • how work will be scheduled
  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

If an employer is advised that a worker has tested positive for COVID-19 due to exposure at the workplace, or that a claim has been filed with the Workplace Safety and Insurance Board (WSIB), the employer is required to notify:

  • the Ministry of Labour, Training and Skills Development in writing within four days
  • the workplace joint health and safety committee or a health and safety representative
  • a trade union (if applicable)
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CKL FRONTLINE WORKERS - TEMP PANDEMIC PAY - NOW IN EFFECT - HOW MUCH, HOW PAID, WHO IS ELIGIBLE. WHAT YOU NEED TO KNOW.

Temporary pandemic pay is aimed at helping frontline staff who are experiencing severe challenges and are at heightened risk during the COVID-19 outbreak.

It is a targeted program designed to support employees who work in congregate care settings or primarily with vulnerable populations, where maintaining physical distancing is difficult or not possible.

The goals of this temporary pandemic pay are to:

  • provide additional support and relief to frontline workers
  • encourage staff to continue working and attract prospective employees
  • help maintain safe staffing levels and the operation of critical frontline services

How much you can get

There are two kinds of pandemic pay you may be eligible for:

  • a temporary top-up based on your hourly wages
  • monthly lump sum payments

Pandemic pay on hourly wages

If you are eligible, you will receive $4 per hour worked on top of your existing hourly wages, regardless of how much you already make.

All eligible workers will receive this amount automatically.

Monthly lump sum payments

If you work at least 100 hours in a designated 4-week period, you will also be eligible to receive an additional lump sum payment of $250 for that period.

The designated 4-week periods are:

  • April 24, 2020 to May 21, 2020
  • May 22, 2020 to June 18, 2020
  • June 19, 2020 to July 16, 2020
  • July 17, 2020 to August 13, 2020

This means you may receive up to a total of $1,000 in lump sum payments over these 16 weeks.

Eligible staff will also be paid retroactively for hours worked during this period.

How to get paid

If you are an eligible frontline worker, you will receive the temporary hourly pandemic pay directly from your employer.

The government is still working out how lump sum payments will be made. 

For employers

Employers are not being asked to apply for pandemic pay; eligible employers will be contacted by May 15.

Who is eligible

Temporary pandemic pay is designed to support eligible full- and part-time employees. It does not apply to management.

Eligibility is not dependent on whether there is a COVID-19 outbreak in the location you work in.

To receive pandemic pay, you must work in both an eligible:

  • role (i.e. be an eligible worker)
  • workplace

Eligible workplaces and workers include those listed below, by sector.

Health care

To be eligible for pandemic pay you must be an eligible worker who works in an eligible workplace providing publicly-funded services.

Eligible workplaces

  • All hospitals in the province, including small rural hospitals, post-acute hospitals, children’s hospitals and psychiatric hospitals
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    • porters
    • cooks
    • custodians
    • housekeeping
    • laundry 
  • Developmental services workers
  • Mental health and addictions workers
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health nurses

Long-term care

Eligible workplaces

  • Long-term care homes (including private, municipal and not-for-profit homes)

Eligible workers

  • All non-management publicly funded employees and workers in eligible workplaces (full-time, part-time and casual)

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

  • All non-management employees working on site in licensed retirement homes (full-time, part-time and casual)

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities and shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licenced children’s residential sites
  • Directly operated residential facility – Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite and drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (such as developmental service workers, staff in licenced children’s residential sites, intake and outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains

Base salaries, benefits and pensions

The temporary hourly pandemic pay and lump sum payments:

  • are non-pensionable earnings
  • are not part of an employee’s base salary
  • have no impact on benefits paid by employers

The temporary pandemic pay and lump sum payments do not impact your eligibility for Employment Insurance (EI) or the Canada Emergency Response Benefit (CERB).

Vacation and leaves

The $4 hourly top-up and lump sum payment eligibility only apply to the hours you actually work.

It does not apply to time you were not in the workplace for any reason, including:

  • vacation
  • any authorized paid leave, including sick leave
  • time and benefits awarded under the Workplace Safety and Insurance Act, 1997

Union dues

Some unions will not be collecting union dues on the temporary pandemic pay.

Consult with your workplace bargaining agent to discuss their particular arrangements.

Unless you receive specific direction from your union, you must continue to pay any union dues required by your collective agreement.

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REOPENING THE CKL - SHOULD BUSINESSES REQUIRE PPE FOR EMPLOYEES? WHAT YOU NEED TO KNOW.

Should businesses in the CKL use personal protective equipment ("PPE") for employees, such as non-medical face masks, gloves and eye protection? 

Yes, PPE is an option, but only when the risk and hazards related to COVID-19 cannot be eliminated through following Ontario's new health and safety guidelines and other governmental orders and directions. 

The Ontario government advises us that PPE should only be used when all other mitigation measures have been implemented, which can be found here: 

https://www.wsps.ca/WSPS/media/Site/Resources/Downloads/covid-19-office-health-and-safety-guidance.pdf?ext=.pdf

If it is to be used, employees must also be trained on how to use PPE correctly, including fit, use, putting it on and taking it off, maintenance, cleaning, and disposal, as well as training on the limitations of PPE.

If PPE is necessary to control risks related to COVID-19, employers should consider what, if any, PPE the employer can provide. With all forms of PPE in high demand, any reopening plan that requires PPE should take into account what forms of PPE the employer has the ability to obtain.  Regardless of the measures that are taken, it is important to ensure that safety measures are based on governmental and public health guidance.

Non-medical face masks continues to spur debate and confusion publicly. Canada’s Chief Medical Officer continues to affirm that individuals should wear a non-medical face mask when they are unable to maintain proper physical distance from others. A non-medical mask can reduce the chance of an individual’s respiratory droplets coming into contact with others or landing on surfaces. The use of a non-medical mask is primarily to protect an employee’s co-workers, as opposed to protecting the individual wearing the mask.

If an employer wants to require or encourage its workers to wear a mask, they should supply those masks. Any provision of masks to employees should be accompanied by a policy on non-medical face masks and training for employees on how to properly use a non-medical mask, as well as their limitations (as described above).

The Government of Canada does not recommend N95 masks for the general public and medical masks such as the N95 are only recommended for health-care workers and people who are taking care of someone in close settings such as acute care, primary care and long-term care facilities.

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LIFTING RESTRICTIONS IN THE CKL - WHEN SELF-ISOLATION IS LEGALLY REQUIRED IN THE CKL - HOW TO SELF-ISOLATE LEGALLY - WHAT YOU NEED TO KNOW.

As of April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under Ontario's Health Protection and Promotion Act.

This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19

  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test

  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or

  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.

  • remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 

  • during the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.

  • keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.

  • seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.

Self-isolating (quarantining) means staying at home and avoiding contact with other people to help prevent the spread of disease.

Generally, you should self-isolate if you are:

  • over 70 years of age

  • have a chronic medical condition (for example, diabetes, lung problems, immune deficiency)

  • think you may have symptoms of COVID-19

This means that you should leave your home or see other people for essential reasons only. Where possible, you should try to get what you need:

  • online

  • over the phone

  • from friends, family or neighbours

Stay home

  • do not use public transportation, taxis or rideshares

  • do not go to work, school or other public places

  • your health care provider will tell you when it is safe to leave

Limit the number of visitors in your home

  • only have visitors who you must see and keep the visits short

  • do not visit with people who are most vulnerable to COVID-19, meaning:

    • seniors

    • people with chronic medical conditions (for example, diabetes, lung problems, immune deficiency)

Avoid contact with others

  • stay in a separate room, away from other people in your home, as much as possible and use a separate bathroom if you have one

  • make sure that shared rooms have good airflow (for example, open windows)

Wear a mask

  • ensure the mask covers your nose and mouth and wear it:

    • if you leave your house to see a health care provider

    • when you are within two metres of other people

Keep distance

  • if you are in a room with other people, stay at least two metres away from each other and wear a mask that covers your nose and mouth

  • if you cannot wear a mask, people should wear a mask when they are in the same room as you

Cover your coughs and sneezes

  • cover your mouth and nose with a tissue when you cough or sneeze

  • if you don’t have a tissue, cough or sneeze into your upper sleeve or elbow, not your hand

  • throw used tissues in a wastebasket that’s lined with a plastic bag

    • the plastic bag makes it safer and easier to empty the wastebasket

    • after emptying the wastebasket, wash your hands

Wash your hands

  • wash your hands often with soap and water

  • dry your hands with a paper towel, or with your own cloth towel that no one else shares

  • use an alcohol-based hand sanitizer if soap and water are not available

Also, read the Government of Canada’s guidance on how to self-isolate if you have:

A poster identifying the requirements for self-isolation is here:

https://www.publichealthontario.ca/-/media/documents/ncov/factsheet-covid-19-how-to-self-isolate.pdf?la=en

 

 

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REOPENING THE CKL - MORE BUSINESSES CAN NOW GRADUALLY OPEN - RETAIL AND ESSENTIAL CONSTRUCTION - NEW HEALTH GUIDELINES MUST BE FOLLOWED. WHAT YOU NEED TO KNOW.

The Ontario government is allowing all retail stores with a street entrance to provide curbside pickup and delivery, as well as in-store payment and purchases at garden centres, nurseries, hardware stores and safety supply stores.

The business owners should review the health and safety guidelines developed by the province and its health and safety association partners.

As soon as Friday, May 8 at 12:01 a.m., garden centres and nurseries will be able to open for in-store payment and purchases, operating under the same guidelines as grocery stores and pharmacies.

 

Hardware stores and safety supply stores will be permitted to open for in-store payment and purchases as soon as 12:01 a.m. on Saturday, May 9.

On Monday, May 11 at 12:01 a.m., retail stores with a street entrance can begin offering curbside pickup and delivery, in accordance with the Ministry of Health's Guidance Document for Essential Workplaces and occupational health and safety requirements.

In addition to easing restrictions on retail, the government is also expanding essential construction to allow below-grade multi-unit residential construction projects like apartments and condominiums to begin and existing above-grade projects to continue. 

Businesses must follow public health measures and should review the workplace safety guidelines, such as promoting physical distancing and frequent handwashing, sanitizing surfaces, installing physical barriers, staggering shifts, and using contactless payment options to stop the spread of COVID-19.

The Ministry of Labour, Training and Skills Development, in partnership with Ontario's health and safety associations, has released over 60 sector-specific health and safety guidelines, including guidelines for curbside pickup and delivery services. Business owners should review the guidelines and consult with local public health officials to ensure they have the information they need to protect workers, customers and the general public as the province prepares for the gradual reopening of the economy.

The government's Framework for Reopening our Province, which was released on April 27, 2020, includes guiding principles for the safe, gradual reopening of businesses, services and public spaces, and the criteria Ontario's Chief Medical Officer of Health and health experts are using to advise the government on the loosening of public health measures, including emergency orders.

 

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CKL BUSINESSES - LEGAL STEPS TO TAKE BEFORE RETURNING EMPLOYEES TO WORK - HOW TO DEAL WITH EMPLOYEES WHO REFUSE TO RETURN. WHAT YOU NEED TO KNOW.

Employers have a duty under Ontario’s Occupational Health and Safety Act to protect the health and safety of their employees.

They must implement preventative measures to ensure employees are not exposed to conditions potentially harmful to their health and safety at work.

Failure to ensure a safe workplace can lead to significant liability, including fines and penalties and, in serious cases, criminal prosecution.

To meet their obligations to provide a safe workplace, it is critical that employers update and implement (and in some cases, post in the workplace) new health and safety policies and practices in their workplaces to address the risks associated with the COVID-19 pandemic, including as now required by Ontario’s new health and safety guidelines for all operating businesses.

So, what about employees who are to return to work?

IDENTIFY HIGH RISK EMPLOYEES

High risk employees, or those at more risk of contracting the virus or having more severe conditions, may include:

  • older adults;
  • those with weakened or compromised immune systems;
  • those with underlying medical conditions, such as: hypertension, lung-related illnesses, heart disease, cancer and diabetes.

Employers should attempt to identify potential high risk employees, including by:

  • requiring a self-disclosure policy, pursuant to which employees disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information); and
  • taking measures to mitigate the risk for self-disclosed high risk employees, such as working from home or in an isolated area.

EMPLOYEES QUALIFIED FOR A TEMPORARY LEAVE OF ABSENCE

In Ontario, employees are eligible for a job-protected, unpaid leave of absence for specific reasons related to COVID-19, such as childcare issues (resulting from the closure of schools) or taking care of a sick family member. If an eligible employee, particularly under Ontario’s infectious disease leave of absence, request this leave of absence, it must be given by the employer, which cannot terminate the employee’s employ during the entire, permitted leave period. 

If a qualified employee requests this leave of absence, employers should consider:

  • implementing work at home arrangements, to the extent possible; and
  • review their own employment agreement with the employee and their work workplace policies, to determine if the employee is entitled to paid leave of absence and, if not, recommend to the employee to apply for the CERB for income replacement benefits.

REFUSAL TO RETURN TO WORK DUE TO VIRUS CONCERNS

In Ontario, an employee has a statutory right to refuse work if he or she believes on reasonable grounds that the work constitutes a danger to his or her health and safety.

If an employee refuses to return to work due concerns about personal safety:

  • the employee must report the hazard to the employer;
  • the employer must ensure it is operating in accordance with Ontario’s new health and safety guidelines;
  • the employer must take any necessary corrective action in a timely manner to address the hazard reported;
  • if an employee believes their workplace remains unsafe, the employee may make a complaint to the Ministry of Labour of Ontario; and
  • Ministry Inspectors have authority to enforce the legislation in several ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.

In every case, employers should ensure their accommodation policies and practices effectively address each issue on a case-by-case basis fairly, reasonably and in accordance with their legal obligations, pursuant to Ontario’s Human Rights Code. The Ontario Human Rights Commissions has clearly indicated that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace, such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).

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REOPENING THE CKL - LEGAL TIPS AND RECOMMENDATIONS TO RESTAURANT/FOOD AND RETAIL BUSINESSES TO MINIMIZE LIABILITY AND PROTECT PUBLIC SAFETY.

Everyone working in the restaurant and food services sector in the CKL needs to consider how to prevent the spread of COVID-19 at work, including:

  • cashiers

  • chefs

  • dishwashers

  • administrators

  • drive-thru operators

  • maintenance staff

To help stop the spread of COVID-19, everyone should comply with requirements under the Occupational Health and Safety Act and with associated regulations and public health directives issued by the Chief Medical Officer of Health.

Protecting yourself and your co-workers:

Coronaviruses are spread through close contact with others. Here are some helpful tips to help prevent the spread of germs at home or in the workplace:

  • Wash your hands often with soap and water or alcohol-based hand sanitizer.

  • Sanitize often, between each transaction if possible.

  • Wash or sanitize hands after making or receiving deliveries.

  • Sneeze and cough into your sleeve.

  • If you use a tissue, discard immediately and wash your hands afterward.

  • Avoid touching your eyes, nose or mouth.

  • Avoid contact with people who are sick.

  • Stay home if you are sick.

  • Avoid high-touch areas, where possible, or ensure you clean your hands afterwards.

  • Where possible, wear gloves when interacting with high-touch areas. Do not touch your face with gloved hands. Take care when removing gloves. Ensure you wash your hands after removing them.

  • Wash your clothes as soon as you get home.

  • If you are ill: notify your supervisor immediately, complete the self-assessment and follow the instructions.

Physical distancing (two meters):

As advised by the Chief Medical Officer and public health officials physical distancing is required to control the spread of COVID-19 (coronavirus).

Here are some tips employers can use to help ensure physical distancing in the workplace:

  • Minimize contact with customers.

  • Maintain a safe distance while handing goods and taking payment, minimize or eliminate handling of cash and eliminate at-the-door payment methods.

  • Assign staff to ensure customers are maintaining safe physical distances in congested areas like entrances/exits and check-outs.

  • Add floor markings and barriers to manage traffic flow and physical distancing.

  • Do not accept re-usable bags or containers that are to be handled by your staff.

  • Install barriers between cashiers and customers; this can include plexiglass or markings on the floor to ensure at least 2 meters between customer and cashier.

  • Stagger start times, shifts, breaks, and lunch times.

  • Restrict the number of people on-site and where they are assigned to work.

  • Control site movement (by limiting the potential for workers to gather).

  • Limit the number of people working in one space at the same time.

  • Minimize the number of people using each piece of equipment in instances where sharing equipment cannot be avoided.

  • Hold meetings in an outside or large space.

  • Limit unnecessary on-site interaction between workers, and with outside service providers.

Workplace sanitation:

Coronaviruses are spread person to person through close contact. While employers always have an obligation to maintain clean worksites, that obligation is under sharper focus due to COVID-19.

Here are some tips for employers to use:

  • Provide ways to properly clean hands, by providing access to soap and water or alcohol-based hand sanitizer.

  • Provide cashiers, drive-through operators, delivery staff and other customer-facing staff with hand sanitizer for their use only.

  • Have all employees and visitors wash their hands thoroughly with soap and water before entering the workplace and after contact with surfaces others have touched.

  • Include handwashing before breaks and at shift changes.

  • Provide a safe place for customers to dispose of used sanitizing wipes and personal protective equipment.

  • Clean washroom facilities.

  • Sanitize commonly-touched surfaces or areas such as entrances, counters, washrooms and kitchens.

  • Sanitize shared equipment (where sharing of equipment cannot be avoided).

  • Post hygiene instructions in English or French and the majority workplace language so everyone can understand how to do their part.

  • Introduce more fresh air by increasing the ventilation system’s air intake or opening doors and windows. Avoid central recirculation where possible.

Adjust onsite and production schedules:

Lowering staff levels on job sites may be required to maintain appropriate physical distancing.  Employers should look at how they can adjust their production schedules to support physical distancing, where possible.

Here are some tips for employers to follow:

  • Limit the number of workers to critical number by staggering work schedules.

  • Consider job rotation.

  • Postpone projects and tasks that don’t need to be done now.

  • Reschedule any unnecessary visits to the workplace by supply chain partners, vendors or others who don’t need to be there now.

  • Ensure sanitation of sites and workspaces.

  • Carry out site planning to facilitate appropriate physical distancing between workers.

  • Establish rules for any work that requires workers within two metres of each other. This could include full personal protective equipment.

  • Offer work-site mobility and transportation, including hoist operations.

Track your workforce:

Due to the delayed period of COVID-19 (coronavirus) spread, it is important to track where workers have been. If an employee tests positive for COVID-19, the local public health unit will ask employers to provide information on where the employee worked as well as the contact information of any other employee who may have been exposed. Employers will provide that information and Public Health Units will respond.

Reporting illness:

The symptoms of COVID-19 are similar to other illnesses, including the cold and flu. At this time, it is recommended that any worker who has symptoms related to cold, flu or COVID-19 be sent home. Public Health Ontario has provided helpful guidance on self-monitoring and self-isolation.

In addition, employers should advise these workers to complete the online self-assessment or call either:

  • Telehealth: 1-866-797-0000

  • their primary care provider (for example, family physician)

Workers with COVID-19:

If you believe one of your workers may have COVID-19 or has tested positive for the disease, you should conduct a risk assessment.

Based on the results, ministry inspectors may require the employer to:

  • inform co-workers who were exposed and send those workers home for two weeks

  • ask those workers to self-isolate and self-monitor and report any COVID-like illness to their employer

  • shut down the job site while the affected workplace and equipment are disinfected

  • implement other measures based on the advice of public health officials

Getting information on infection prevention and control:

Employers can contact local public health units for questions on workplace infection prevention and control related to COVID-19 infections.

Share information:

It is important that all parties in a workplace communicate their roles and responsibilities. Employers must ensure health and safety policies are updated and posted for all workers to see. Using industry resources, including this one and those produced by the Workplace Safety and Prevention Services (WSPS), will improve on-site understanding.

Post your policies:

All employers must post and communicate COVID-19 policies to workers.

These policies should cover how the workplace will operate, including, but not limited to:

  • the sanitization of the workplace

  • how workers report illnesses

  • how to ensure physical distancing

  • how work will be scheduled

  • screening measures

Ministry of Labour, Training and Skills Development reporting requirements:

If an employer is advised that a worker has tested positive for COVID-19 due to exposure at the workplace, or that a claim has been filed with the Workplace Safety and Insurance Board (WSIB), the employer is required to notify:

  • the Ministry of Labour, Training and Skills Development in writing within four days

  • the workplace joint health and safety committee or a health and safety representative

  • a trade union (if applicable)

 

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RELATIONSHIP BREAKDOWN - A MARRIED SPOUSE'S RIGHT TO "EQUALIZATION" MONEY - THE BASICS.

When legally married spouses separate with no reasonable prospect that they will resume cohabitation, the spouse whose net, financial worth is less than the other is likely entitled to an “equalization” payment.

An equalization payment is intended to balance and account for the inherent joint responsibilities, whether financial or otherwise, the spouses shared during the marriage, pursuant to sub-section 5(7) of Ontario’s Family Law Act (the “FLA”).  

The separated spouse whose net worth accumulated during the marriage is less is generally to one-half the difference of the spouses “net family properties”, pursuant to sub-section 5(1) of the FLA.

Net family property means the value of all the property, except property under sub-section 4(2) of the FLA (“excluded property”), that a spouse owns on the valuation date (or “date of separation”), after deducting the spouse’s debts and other liabilities and the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage. 

Usually, a spouse that is separated or divorced would make a claim for equalization when they make an Application (Form 8) in the Superior Court of Justice.

Notably only married spouses are entitled to claim equalization against the other.

Equalization is a unique property claim that the sub-section 5(1) of the FLA confers to married couples exclusively - it is a personal right.

An equalization claim is different from other property rights to which a person may be entitled otherwise upon a separation or divorce, arising from joint ownership, shares in a business or title to real property.

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UPDATE - USING NON-MEDICAL MASKS IN THE CKL. WHEN, HOW TO CLEAN - WHAT YOU NEED TO KNOW.

The best way to stop the spread of COVID-19 is by staying home and avoiding close contact with others outside of your household.

You may consider using a face covering (non-medical mask such as a cloth mask or bandana) to reduce the risk of transmission of COVID-19 in areas where physical distancing may be challenging or not possible, such as:

  • public transit
  • smaller grocery stores or pharmacies
  • when you are receiving essential services

Medical masks (surgical, medical procedure face masks and respirators like N95 masks) should be reserved for use by health care workers and first responders.

Face coverings will not protect you from getting COVID-19. The best way to protect yourself is to:

  • stay home except for essential reasons
  • avoid close contact with others and keep at least two metres from others outside your household
  • wash your hands regularly (or using alcohol-based hand sanitizer if soap and water are not available)
  • practice proper cough and sneeze etiquette (for example, sneeze and cough into your sleeve and avoid touching your eyes, nose or mouth)

Who should not use face coverings

Face coverings should not be placed on or used by:

  • children under the age of two
  • anyone who has trouble breathing
  • anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance

How to properly use, clean and dispose of face coverings

If you choose to use a face covering, you should:

  • wash your hands immediately before putting it on and immediately after taking it off (practise good hand hygiene while you are wearing the face covering)
  • make sure the face covering fits well around your nose and mouth
  • avoid moving the mask around or adjusting it often
  • avoid touching the covering while using it
  • not share it with others

Face coverings should be changed when they get damp or soiled.

When removing a face covering, you should:

  • throw it out into a lined garbage bin
  • wash your hands

Do not leave any discarded face coverings in shopping carts or on the ground.

If the face covering can be cleaned, you should:

  • put it directly into the washing machine or a bag that can be emptied into the washing machine
  • wash with other items using a hot cycle with laundry detergent (no special soaps are needed), and dry thoroughly
  • wash your hands after putting the face covering into the laundry

All face coverings that cannot be cleaned should be thrown out and replaced as soon as they get damp, soiled or crumpled.

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REOPENING THE CKL - SAFETY CONTROLS RECOMMENDED TO CURBSIDE AND DELIVERY EMPLOYEES AND BUSINESSES IN THE CKL.

For employees engaged in curbside and/or delivery services, you may have contact with customers and surfaces, such as money, credit cards and products as you work.

You could also potentially come in contact with droplets as a result of these interactions. COVID-19 can travel in respiratory droplets that are released into the environment by laughing, coughing or sneezing.

Consider where you might minimize those risks within your workplace. Consult public health information to learn the symptoms of COVID-19 infection. Recognize and report these hazards and use appropriate controls. Ensure that you or your co-workers stay home if you or they have symptoms. It’s important to take a look at where you can possibly minimize those risks within your workplace. 

SUGGESTED CONTROLS

To better protect yourself from some of these hazards consider the following options:

 Minimize or eliminate exposures by having customers pre-pay online or use credit, debit or e-transfer.

 Establish a process that minimizes time required to receive the customer and complete any curbside transaction (For example – have the customer call or otherwise notify upon arrival)

 Where possible maintain control of loading product into the vehicle. Ask the customer to remain in the vehicle and remotely open the door to limit contact with surfaces. This will aid in maintaining physical distancing and avoid un-necessary person to person interactions.

 Following completion of curbside transaction or home delivery, ensure employees sanitize their hands and any surfaces.

 Do not permit customers to use their own containers, reusable bags or boxes.

 Physical distancing (staying 2 metres away from others) requires fewer persons within an enclosed space or area. Establish clear visuals to show where the designated pickup area is located and the boundaries of the pickup area. Customers should be prohibited from exiting their vehicle while they are in the designated pickup area and stay inside their vehicle.

 Establish a procedure for delivery to customer homes that eliminates in-person interactions (For example – drop package off at door and notify customer via call or text message of delivery completion)

 Ensure physical distancing guidelines (2 meters) are met for delivery workers (For example – if two workers are required to complete a delivery and they cannot maintain physical distancing while travelling in the same vehicle, consider the use of a second vehicle or consider installing a transparent physical barrier(s) that does not impede field of vision between driver and any passengers).

 Fresh air circulation and supply should be made available wherever possible (For example – in loading and unloading areas). Increase airflow by opening doors and windows to reduce contaminant build up.

 Increase cleaning frequency – on commonly touched surfaces like material handling equipment (steering wheels, debit machines, carts, dollies, lifts). Cleaning and disinfecting should be performed regularly and after possible exposure. Be sure to follow safe practices regarding cleaning times and cleaning agents.

 Have all employees and visitors wash their hands thoroughly with soap and water, or an alcohol-based hand sanitizer if soap and water are not available, before entering the workplace, after contact with others, or with surfaces others have touched. Be sure to include handwashing before breaks, at shift changes, after making or receiving deliveries etc. Be sure to keep an adequate supply of soap, paper towels, etc.

 Provide delivery, curbside and other customer facing staff with hand sanitizer for their use only when receiving deliveries, interacting with the public etc.

 If you use a third party delivery service, ensure their training is up-to-date with the latest COVID-19 prevention knowledge as part of your contractor management process.

 Keep up to date with best practices. Consider regular times to check in with public health updates and retrain/revise practices as needed.

Screen workers regularly for health issues. If anyone develops symptoms of COVID-19, implement procedures for reporting the illness and keeping the worker away from others. For further guidance on screening procedures, consult the Ministry of Health at:

http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/2019_guidance.pdf

If these recommendations are still not enough for your workplace, as a last resort, consider Personal Protective Equipment (PPE). PPE is only effective if people wear it correctly. Ensure PPE training includes the fit, use, care, putting on and taking off, maintenance, cleaning, storing and limitations of the PPE. Some example of PPE that may be suited include:

 Gloves – The use of disposable gloves can help limit contact with surfaces, product etc. Be sure you have practices set up for suitable disposal and when gloves should be changed such as torn and or dirty. It’s also important, again, to ensure you consider other hazards that may be present in the workplace before introducing gloves – in some cases, gloves can be an ‘entanglement’ hazard and should not be worn.

 Goggles or face shields – can help with barriers and separation too. They should be assigned to people and not shared and can be used regularly if kept clean. Ensure the goggle or face shield use does not result in workers touching their faces more often because of heat or discomfort. 

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CKL FARMERS - NEW "INIITIAL" RELIEF PACKAGE ANNOUNCED TODAY. WHAT YOU NEED TO KNOW.

May 5 - Today the federal Government announced a new multi-million-dollar, multi-part package aid package for farmers and food processors.

It is an “initial announcement”, being substantially less than the $2.6 billion emergency fund requested by the Canadian Federation of Agriculture.

  • a new $77 million fund for food processors of varying size, including meat packers, to help businesses retrofit their factories and increase capacity to deal with the backlog of livestock that's been building up in parts of the county
  • aid money can be used to buy personal protective equipment for workers, adapt to health protocols and support other social distancing measures;
  • aid money can also be used to make conditions safer for workers on the line, noting that occupational health and safety is a provincial issue; and
  • an additional $125 million to the AgriRecovery fund, a federal-provincial-territorial program aimed at helping farmers during disasters.
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CKL BUSINESSES - TO REOPEN, CONSIDER TAKING YOUR EMPLOYEES' TEMPS (THERMAL TESTING) TO PROMOTE SAFETY, PROTECT PRIVACY AND MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

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CKL BUSINESSES - HOW TO AVOID BEING FINED FOR OPERATING AS "NON-ESSENTIAL" OR FAILING TO COMPLY WITH THE NEW HEALTH AND SAFETY GUIDELINES - WHAT YOU NEED TO KNOW

AVOIDING PENALTIES FOR UNLAWFULLY OPERATING:

The best defence against a warning, fine or summons is to argue that the business is in fact within a category of “essential” businesses and, as a result, the penalty is unwarranted.

Some possible measures to reduce the risk of incurring a penalty include:

  • evaluating whether all or portions of your business may qualify as “essential”, as this definition becomes amended from time to time - while it may not be possible to open all of your business operations, it may be possible to partially open those parts of your business which are “essential”;
  • identifying the key employees who are needed to work on-site and offer them defined hours of operations, have in place safety measures to limit physical contact, and make sure that their work qualifies as an “essential” category of business; and
  • providing key employees with letters indicating that they are employees at an essential business and ensure they have proper credentials to confirm to property managers or authorities in case they are questioned by by-law enforcement officers or police officers.

On April 30, 2020, the Province of Ontario provided guidelines for certain business sectors to ensure that the eventual reopening of Ontario’s economy can be done safely.  The six specifically listed sectors are construction, food processing, restaurant and food services, agriculture, manufacturing and long-term care.

Ontario’s sector-specific guidelines include general public health recommendations including holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.  These guidelines also recommend installing plexiglass barriers, increasing the air intake on heating, ventilation and air conditioning systems to increase air flow, maintaining frequent cleaning for public spaces, and promoting physical distancing.  Businesses that are considering plans for re-opening would benefit from considering and implementing these provincial guidelines.  

For more information from us about these new health and safety guidelines and the accompanying posters for your workplace, go here: http://wardlegal.ca/31587872329978

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CKL PARENTS - ONE TIME EXTRA $300 FOR CANADA CHILD BENEFIT IN MAY. WHAT YOU NEED TO KNOW.

May 3 – the federal Government announced that families receiving the Canada Child Benefit (CCB) will get $300 extra per child in May to help them deal with the added pressures of COVID-19.

Eligible families will automatically receive this one-time increase as part of their scheduled CCB payment in May.

Those who already receive the CCB do not need to re-apply for this one-time increase.

In addition to this one-time CCB increase, individuals and families with low and modest incomes may receive a special top-up payment through the Goods and Services Tax credit.

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IF MY CKL BUSINESS IS FINED FOR OPERATING UNLAWFULLY, OR NOT FOLLOWING THE NEW HEALTH AND SAFETY GUIDELINES, CAN I FIGHT IT? HOW? WHAT YOU NEED TO KNOW

CHALLENGING A FINE FOR NON-COMPLIANCE:

Even if you maintain a defensible position for operating a non-essential business during the lockdown, including demonstrating compliance with the new health and safety guidelines, a by-law officer or police officer may still issue a ticket to employees or businesses for non-compliance with the provincial lockdown order.

So far, in the CKL, there is no specific legal Court to challenge or dispute these tickets.

As a result, a business or individual will have to challenge a fine or other penalty issued under the Emergency Management and Civil Protection Act through Provincial Offences Court or, where available, municipal administrative bodies for municipal by-law offences related to COVID-19.

It may be possible in the CKL to request, if you were ticketed by a municipal by-law officer, an early resolution meeting with a prosecutor to resolve the matter without the need for a trial or request a trial at Provincial Offences Court.  

It is hoped that the CKL will facilitate and encourage alternative dispute resolution for these types of offences.

Formal challenges to tickets and fines issued by by-law officers or police officers will likely not be heard until Provincial Offences Court resumes in-person hearings or commences virtual hearings.  

This said, during this emergency period, the Province of Ontario has suspended limitation periods applicable to Ontario court matters retroactive to March 16, 2020 until the order is revoked, so in-person challenges will not likely be heard until the Courts re-open. 

When Provincial Offences Court reopens and hears cases again, a ticketed business or individual can file an appeal for convictions within thirty days of the conviction date.

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UPDATE TO CKL BUSINESSES - AM I ESSENTIAL NOW? WHAT RULES MUST I FOLLOW TO OPERATE? WHAT IF I GET FINED - HOW MUCH IS IT?

As of March 24, 2020, Ontario has declared a “State of Emergency” under Ontario’s Emergency Management and Civil Protection Act.  

To date, this is in effect until May 6, 2020, but it may be extended. 

Only “essential” businesses may remain open.

DEFINITION OF “ESSENTIAL” BUSINESSES:

“Essential” businesses currently are:

  • Healthcare Services – hospitals, laboratories, health facilities, and manufacturers, wholesalers, distributors and retailers of pharmaceutical products.
  • Supply Chains – businesses which support or supply systems or services in a supply chain such as processing, packaging, distribution, delivery, and maintenance.
  • Retail and Wholesaling – businesses which sell food, pet foods, supplies necessary to maintain safety, sanitation, and essential operations such as grocery stores or supermarkets.
  • Agriculture, Production, and Food Services – agricultural operations and food production businesses are allowed to remain open during this period. Restaurants will be allowed to open only for take-out or delivery options during this period.
  • Financial Services – banks, credit unions, insurance, capital market operations (such as stock exchanges), and businesses that provide payroll or payment processing services.
  • Utilities – utilities such as electricity generation, transmission, distribution, and storage, natural gas services, emergency first-responders (police, firefighters, paramedics), and government services.
  • Other – childcare services for essential workers, medical research facilities, telecommunications and media, and long-term care facilities.

The full list of essential businesses in Ontario is here: https://www.ontario.ca/laws/regulation/200082

The Province of Ontario also announced that effective May 4, 2020, certain other businesses not included on this list of “essential” services will be allowed to gradually re-open business operations.  These businesses include garden centres and nurseries, lawn care and landscaping services, additional construction projects for telecommunications, shipping, schools, and construction site development.  The full list of these businesses is here: https://news.ontario.ca/opo/en/2020/05/certain-businesses-allowed-to-reopen-under-strict-safety-guidelines.html

PENALTIES FOR FAILING TO COMPLY:

Businesses which do not belong to a category of “essential” business and continue to operate during this period risk incurring the following penalties under the Emergency Management and Civil Protection Act:

  • an individual could be subject to a fine of up to $100,000 and imprisonment of up to one year;
  • an individual who is a director or officer of a corporation could be subject to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and
  • a corporation could be subject to a fine of not more than $10,000,000.

Municipal by-law officers and municipal or provincial police officers are enforcing this emergency order. They are empowered to issue warnings, fines, or summonses to “non-essential” businesses and their directors, officers, and employees which maintain business operations during this mandatory closure. Municipalities may also have specific by-laws which further limit business operations within these jurisdictions.

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CKL POST-SECONDARY STUDENTS AND GRADUATES - UPDATE ON YOUR EMERGENCY BENEFITS AND WHEN AVAILABLE

Very recently Bill C-15:  An Act respecting Canada emergency student benefits (coronavirus disease 2019), the legislation that implements the government's Canada Emergency Student Benefit ("CESB"), became law.

Under the CESB, eligible post-secondary students and recent graduates will receive $1,250 a month from May to August 2020, while those with dependents or disabilities will receive $2,000 per month (an increase from the originally announced $1,750).

Applications for the benefit are expected to be available by mid-May 2020.

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REOPENING THE CKL - WHAT LOCAL BUSINESSES MUST NOW DO TO PROTECT YOUR SAFETY - THE NEW NORMAL - NEW POSTERS AVAILABLE HERE

THE NEW HEALTH AND SAFETY “BEST PRACTICES” GUIDELINES FOR BUSINESSES IN THE CKL

The Government of Ontario’s general resources page for all sector-specific guidelines is here: https://www.ontario.ca/page/resources-prevent-covid-19-workplace

Specifically, these “best practices” guidelines apply to the manufacturing, food manufacturing/processing, restaurant/food service and agricultural sectors.

Today, these businesses in the CKL will be permitted to reopen operations, while following health and safety guidelines:

  • garden centres and nurseries with curbside pick-up and delivery only;
  • lawn care and landscaping;
  • additional essential construction projects that include:
    shipping and logistics;
    broadband, telecommunications, and digital infrastructure;
    any other project that supports the improved delivery of goods and services;
    municipal projects;
    colleges and universities;
    site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
    child care centres; and
    schools.
  • automatic and self-serve car washes;
  • auto dealerships, open by appointment only;
  • golf courses may prepare their courses for the upcoming season, but not open to the public; and
  • marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

The guidelines are arranged in a similar way for each sector, with dozens of specific recommendations listed under the following headings (among others):

  • protecting yourself and your co-workers (e.g. by hand-washing and staying home when ill);
  • physical distancing (e.g. by holding team meetings outdoors or installing plexiglass barriers);
  • workplace sanitation (e.g. by providing hand sanitizer, improving ventilation and staggering work schedules);
  • workplace tracking (e.g. by keeping records of where each worker has been in the workplace);
  • reporting illness (e.g. by encouraging workers to do Ontario’s online self-assessment);
  • sharing information (e.g. by using up-to-date workplace posters re COVID-19 policies).

The new guidelines stress across all business sectors:

1. appropriate physical distancing (2m / 6’), eliminating pay-at-the-door options, holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage customer traffic flow;

2. wherever possible, changes to the workplace, like installing plexiglass barriers, increasing the air intake on building heating, ventilation, and air conditioning (HVAC) systems to increase air flow, and using boot sanitizing trays; and

3. promoting proper workplace sanitation, providing personal protective equipment, substituting dry dusting with vacuuming, ensuring customer-facing staff are given hand sanitizer, providing a place to dispose of sanitizing wipes, and enforcing hand washing before and after breaks.

Depending on the industry sector, additional recommendations may also be made.

For example, for restaurants (and food manufacturers with associated retail operations), there is a recommendation against accepting reusable bags from customers and a recommendation that staff be assigned to monitor physical distancing by customers.

Generally, however, the recommendations are fairly similar across all of the sectors.

HEALTH AND SAFETY POSTERS

The government is also making a range of safety posters available for downloading.

Go here: https://files.ontario.ca/mltsd-2/mltsd-essential-sector-posters-food-manufacture-processing-worker-en-8.5x11-2020-04-30.pdf

Also go here: https://www.ontario.ca/page/resources-prevent-covid-19-workplace

INSPECTION AND ENFORCEMENT

These guidelines are recommendations, but will be monitored and enforced by Ontario’s Ministry of Labour inspectors.

Ontario is committing 58 additional workplace inspectors to the effort, who will focus primarily on communicating best practices to employers.

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CKL BUSINESSES - THE RISKS FOR IMPROPERLY GETTING THE NEW WAGE SUBSIDY - REPAYMENT, INTEREST, STEEP FINES AND CRIMINAL LIABILITY - GET ACCOUNTING HELP WHEN APPLYING - WHAT YOU NEED TO KNOW

CANADA EMERGENCY WAGE SUBSIDY (CEWS) – WHAT YOU NEED TO KNOW

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”

RISKS – WHAT IF I GET IT AND I WAS NOT ENTITLED TO IT?

Here is an excellent summary of what can happen, in terms of both civil and criminal liability, for improperly obtained the CEWS during the pandemic, which penalties could include:

[1] a requirement to repay the CEWS amount received, in full, plus interest;

[2] monetary and criminal penalties for making false statements to the federal government;

[3] civil liability, including under Canada’s Income Tax Act;

[4] criminal liability under Canada’s Criminal Code and the Income Tax Act;

[5] potential personal liability to directors of corporations that apply for and receive the CEWS;

[6] monetary penalties for “artificial transactions”; and

[7] third-party civil penalties.

Continue reading……….

“The Canada Revenue Agency (CRA) has indicated that it will be publishing a list of all employers that have applied for the subsidy, such public listing being partially motivated as a way to dissuade fraudulent claims. The government has repeatedly cautioned that the subsidy requires "good faith and trust between everyone involved" and that large penalties may apply where employers receiving the CEWS are ultimately found not to be eligible. For some employers, penalties may not be a concern—their eligibility for the CEWS is clear, but, for others, their unique circumstances make their eligibility for, and the scope of, the CEWS somewhat uncertain and the risk of penalties becomes a significant concern. The purpose of this blog post is to describe the consequences to employers who receive the CEWS but are ultimately found not to be eligible for all or a portion of the subsidy received. It is our hope that the summary below will provide some comfort to those employers faced with concerns as to their entitlement for the CEWS and help determine a path forward.

Background: Uncertainties Abound

The CRA has indicated that it will be implementing both pre- and post-payment verification work for the CEWS. The CRA has issued an application guide, various FAQs and further guidance is anticipated both through CRA pronouncements and potential regulations. Notwithstanding these publications, there remain many areas of uncertainty, which is perhaps not surprising given how quickly the legislation was rolled out and its complexity.

Of particular note, a key requirement of eligibility for the CEWS is that the employer experience a decline in "qualifying revenue" for March 2020 of at least 15 percent (as compared to the reference period of March 2019 or average of January and February 2020) and for April or May 2020 of at least 30 percent (as compared to the reference period of April or May 2019 or average of January and February 2020). For many employers, the calculation of revenue for this purpose is far from straight-forward. Open issues include what items should be excluded as "extraordinary items"; the treatment of items typically included in "gross revenue" for tax purposes but not typically included in computing revenue under "normal accounting standards"; the treatment of dividends, interest and other investment income; calculation issues in consolidated groups, and more. Uncertainties can also arise in determining what, if any, portions of an employee's remuneration are to be included or excluded from the CEWS calculation. In some circumstances, it is also difficult to confirm, prior to the receipt of the CEWS, that none of the particular anti-avoidance rules in the legislation apply.

Over time, many of the remaining issues will be clarified. But, until then, some employers face a difficult choice—should they apply for the CEWS in circumstances where their entitlement may not be 100% clear or should they wait for further clarifying guidance and delay their receipt of funds crucial to maintaining their business operations and keeping their employees employed. Given the significance of the CEWS and the impact on an employer's business, we expect that many employers will want to make their applications sooner rather than later but making an educated decision in this matter requires an understanding of the potential penalties.

Consequences of Errors

Employers are required to keep records demonstrating their eligibility for the CEWS, including the reduction in qualifying revenue and the computation of eligible remuneration amounts. The CRA has indicated that it will use a combination of automated queries and validation within its data, follow-up phone calls to verify certain elements of the claim when necessary, and more comprehensive post-payment reviews or audits of employers who receive the subsidy. Where an employer is ultimately found to be ineligible, several potential consequences result.

Repayment of Subsidy and Interest

The CEWS will be distributed through a deeming rule in the Income Tax Act (ITA) which deems an employer that qualifies to have made an "overpayment" of the employer's liability for tax. This overpayment is deemed to arise in the applicable qualifying period (i.e., March 15 to April 11, 2020, April 12 to May 9, 2020, or May 10 to June 6, 2020). The Minister is then to assess the employer and the deemed overpayment is "refunded" to the employer. Where the employer is ultimately found to be ineligible for all or a portion of the subsidy, the employer would be assessed for the amounts owing pursuant to the regular administrative provisions in the ITA, with the result that the deemed overpayment would not arise, such that the employer will be required to repay any portion of the subsidy to which they were not entitled.

In addition to the repayment of any portion of the CEWS to which the employer is not entitled, the scheme of the ITA indicates that interest should also be payable on the amount that needs to be repaid. Although not entirely clear, it appears that such interest will begin to accrue on the "balance due-date" of the employer for the taxation year in which the subsidy was paid, which, for individual employers is generally April 30, 2021, and, for corporate employers, is two months after their tax year-end (February 28, 2021, for corporations with a December 31 year-end), and extended to three months for certain Canadian-controlled private corporations (March 31, 2021, for those Canadian-controlled private corporations with a December 31 year-end). Importantly, it does not appear that, under current rules, interest accrues from the earlier date when the CEWS is originally paid, although it is possible this may be changed through further amendment.

Note that there is no due diligence defence for either the obligation to repay the CEWS or the obligation to pay interest. Thus, employers who apply for the CEWS in the face of uncertainty in their positions must, at a minimum, be aware of the risk of that they will need to repay the subsidy and interest thereon.

Monetary and Criminal Penalties for False Statements

The government's publications on the CEWS have contained strong warnings against any false statements. For example, as part of the CEWS application, the individual who has the principal responsibility for the financial activities of the employer must attest that the application is complete and accurate in all material respects by completing an Attestation. The Attestation includes an acknowledgement that "making a false attestation is a criminal offence, and that the CEWS program rules and other rules under the Income Tax Act contain serious penalties and consequences for intentional or grossly negligence false statements and other misconduct."

Civil Liability

As a part of the ITA, the CEWS regime incorporates the ITA's penalty regime applicable to fraudulent claims or false statements, which applies in addition to the obligation to repay the CEWS. In particular, if any person knowingly, or under circumstances amounting to gross negligence, makes, or participates in the making of, a false statement or omission in its CEWS application, that person is liable to a penalty equal to the greater of $100 and 50 percent of the difference between the amount of the CEWS claimed in the application and the amount of the CEWS to which the employer is actually entitled.

To impose such penalty, the CRA must show that the CEWS application contained one or more incorrect statement that were made either:

  • knowingly—this requires that the person making the statements had actual knowledge or ought to have known that the facts disclosed in the CEWS application were incorrect; or
  • under circumstances amounting to gross negligence—this involves conduct involving either deliberate wrongdoing or a marked departure from the standard by which a reasonably careful person would prepare the CEWS application. Gross negligence has been described as a "high degree of negligence tantamount to intentional acting, an indifference as to whether the law is complied with or not."

The burden of proof lies with the CRA to show that the factual circumstances are such that the gross negligence penalties are justified. Caselaw on the application of the ITA gross negligence penalties in the context of other tax rules indicates that such penalties should be difficult to apply where the person making the CEWS application sought professional assistance in completing the application and disclosed all amounts in issue on the application. For this reason, where any material uncertainty exists with respect to the eligibility of an employer to the CEWS, employers should seek professional advice in ensuring that they have completed the appropriate due diligence and are not knowingly making a false statement.

Criminal Liability

In addition to the above civil penalty for false statements, the ITA also contains a criminal penalty regime for false statements. Under this regime, every person who obtains a refund under the ITA (which would include receipt of the CEWS) which is greater than the amount to which the person is entitled by making, or participating in the making of, a false or deceptive statement, is guilty of an offence. In addition to any other penalty provided, such person is liable: (i) on summary conviction, to a fine of between 50 percent and 200 percent of the amount of the refund claimed but not entitled to or both the fine and imprisonment for a term not exceeding two years, or (ii) if convicted on indictment, to a fine of between 100 percent and 200 percent of the amount of the excess refund and imprisonment for a term not exceeding five years.

As true criminal offences, the onus is on the CRA to prove that the false statements were made knowingly and with the requisite mental intent to obtain the CEWS in excess of the employer's actual entitlement. Although the government's publications have referred several times to this maximum imprisonment of five years, the imposition of these criminal penalties would presumably only be made in clear cases of tax evasion. As above, where an employer has sought professional advice and has made a bona fide effort to calculate its CEWS entitlements and disclose all pertinent information on its CEWS application, such criminal liability should not apply.

Director Liability for Employers that are Corporations 

Under the ITA, an officer, director or agent of a corporation who directs, authorizes, assents to, acquiesces in, or participates in the commission of an offence by the corporation is a party to, and guilty of, the same offence. That officer, director or agent, as the case may be, will be liable to the same punishment provided for the offence, whether or not the corporation has been prosecuted or convicted for it. Accordingly, where an employer that is a corporation commits the criminal offence of making false statements as described above, directors or officers of that corporation may also face liability for the fines and imprisonment described above. This may be of particular import to the person who bears responsibility for the attestation made as part of the CEWS application. Thus, officers who make such attestation, and the directors who approve the attestation, should carefully review to ensure that no false statements have been knowingly made or without the proper due diligence.

Monetary Penalty for Artificial Transactions 

The CEWS regime also includes a specific anti-avoidance rule, and additional penalties, where:

  • the employer (or a person or partnership that does not deal at arm's-length with the employer) enters into a transaction or participates in an event (or a series of transactions or events) or takes an action (or fails to take an action) that has the effect of reducing its qualifying revenues for the particular period (subject to explicitly enumerated exceptions); and
  • it is reasonable to conclude that one of the main purposes of the transaction, event, series or action is to cause the employer to qualify for the subsidy.

Where this anti-avoidance rule applies, in addition to the obligation to repay the CEWS, the employer will be liable to a penalty equal to 25 percent of the amount of CEWS it claimed.

Caselaw on similar purpose tests in other provisions of the ITA indicates that, in determining "purpose", the courts should look beyond the subjective intentions of the employer undertaking the impugned action and should look to objective manifestations of purpose. Courts have also rejected the argument that a taxpayer can have only one "main" purpose, holding that any significant purpose is a main purpose. Applying those principles to the CEWS anti-avoidance rule, where qualification for the CEWS is a substantial purpose driving the decision to enter into a transaction or take an action that reduces revenue, that purpose may well be a "main" purpose. On the other hand, some courts have held that, where transactions that are entered into for a "genuine commercial purpose" and are not deliberately structured in such a way as to obtain a tax advantage, the tax advantage should not be regarded as a main purpose of the transaction. That said, in the context of different provisions of the ITA, courts have held that, where a transaction results in a tax benefit (here, qualification for the CEWS), the CRA may reasonably infer that a purpose of the transaction is to obtain that benefit.

The key takeaway here is that employers should exercise extreme caution in undertaking any measures to intentionally reduce qualifying revenues, even if those measures also have genuine commercial purposes. If employers are undertaking any out-of-the-ordinary actions, or failing to take ordinary actions, which have the effect of reducing qualifying revenues, it will be incumbent on the employer to offer an objectively reasonable and persuasive explanation that establishes that none of the purposes of such action or inaction was to enable the employer to qualify for the CEWS.

Third-Party Civil Penalties 

The penalties described above apply to employer receiving the CEWS and, in some cases, to its directors and officers. In addition to these penalties, the ITA also contains provisions for civil penalties on third parties who make or furnish, participate in the making of or cause another person to make or furnish a statement that the person knows, or would reasonably be expected to know but for circumstances amounting to culpable conduct, to be false. These are generally categorized as a “planner penalty” and a “preparer penalty”, with the primary difference being that the “preparer penalty” can apply where the false statement could be used on behalf of the taxpayer by someone else (as opposed to only directly by the taxpayer). The penalties therefore apply fairly broadly.

The “planner penalty” is the greater of $1,000 and the third-party planner’s “gross entitlements” (i.e., amounts that the third-party planner, or a person not dealing with them at arm’s length, is entitled to receive in respect of the activity) when the false statement is made in the course of a tax planning activity or valuation. In any other case, the “planner penalty” will be $1,000. The “preparer penalty” is the greater of $1,000 and 50 percent of the taxes saved by the taxpayer by making the false statement (up to a maximum amount of the total of $100,000 and the third party person's “gross compensation”, i.e., amounts that the third-party preparer, or a person not dealing with them at arm’s length, is entitled to receive in respect of the activity).

Accordingly, if a third party files or prepares the CEWS subsidy application on behalf of an employer, such third party could be subject to a third-party penalty under the ITA, if such third party knew or would reasonably be expected to know, that the application contained false statements. For this purpose, a false statement includes a statement that is misleading because of an omission from the statement. The burden of proof lies with the CRA to show that the factual circumstances are such that the penalties are justified. In addition, the ITA contains a good faith defence, pursuant to which the advisor will not be subject to a penalty if the advisor acted in good faith on the information provided by the employer. There are a number of factors that could affect whether this good faith defence is available in any particular circumstance. Importantly, such penalties do not generally apply to employees.

Conclusion

Our expectation is that the CEWS will be administered in a purposive fashion—i.e., in a manner that provides support to employers with the goal of ensuring that workers continue to receive employment remuneration during the COVID-19 pandemic and in a manner that place employers in the position of having a strong workforce from which to continue their businesses following the pandemic.

In line with such expectation and with the caselaw on the ITA penalty provisions, penalties should not be imposed in cases where an excessive CEWS claim arises from an employer's reasonable position that is subsequently successfully challenged by the CRA. In other words, where an excessive CEWS claim arises due to a bona fide position taken in relation to an issue on which there is uncertainty, we would expect that the consequence of a claim made in error should be limited to a repayment of the CEWS and interest thereon, without the imposition of penalties. It will be important, however, that employers not take positions which are obviously unreasonable or are contrary to well established caselaw principles and that the CEWS application not contain any false or misleading statements. In areas where clarity is lacking, professional assistance should be sought.

The information in this blog is current to April 27, 2020. As of the date of writing, various reports indicate that the government is also considering additional penalties to address situations where CEWS funds are misused (e.g., not used to pay employees).”

Credit: Anu Nijhawan and Hennadly Kutsenko, Bennett Jones LLP, via Lexology.com on May 4, 2020

 

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REOPENING AND COMING BACK STRONGER - OUR TOP FIVE TIPS TO CKL BUSINESSES AND MANAGING EMPLOYEES DURING COVID-19

How your business manages its way through the pandemic will be a strong measure of its ability to achieve post-pandemic success.

No one knows how we’ll emerge from this.

Will corporate culture change?

Will our offices become mere hubs for periodic interaction and specific purposes, leaving many of us to continue working remotely?

Will we travel at all for work in the future.

No one knows.

But ensuring a strong, committed relationship with every employer continues to be essential during the pandemic.

Every CKL employer should consider taking this approach to its relationship management with its employees:

  • consistently reinforce a message of trust with your employees – those who feel trusted they will take greater ownership than if they feel they are being micro-managed in difficult circumstances;
  • check in regularly at a personal level - mental wellbeing is critical in these times and acknowledging possible challenges will help employees feel safe, nurtured and if necessary be more open about their challenges;
  • remain mindful of the different challenges people face when working from home (small spaces, poor IT, young children) and adapt working practices – and expectations – accordingly;
  • engage your entire workforce, not only those that are adjusting better or more efficiently; and
  • appreciate that when working remotely, old networking habits may resurface excluding certain workers - active engagement and feedback is even more critical to assure you maximize the benefits of your diverse talent pool.

Maximize the potential success of your business after this pandemic, hopefully to being more successful than ever.

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CKL BUSINESSES ALLOWED TO OPEN ON MONDAY - WORKPLACE RULES TO FOLLOW - WHAT YOU NEED TO KNOW

May 1 - The Ontario government is allowing certain businesses and workplaces to reopen, provided they comply with strict public health measures and operate safely during the COVID-19 outbreak.

Those permitted to start up include seasonal businesses and some essential construction projects.

For this purpose, the government, in partnership with Ontario's health and safety associations, has developed more than 60 guidelines in response to COVID-19.

These sector-specific measures will help employers prepare their workplaces so they can be reopened safely and ensure workers, customers and the general public are protected.

By following the proper health and safety guidelines, these businesses will be permitted to begin operations on Monday, May 4 at 12:01 a.m.:

  • Garden centres and nurseries with curbside pick-up and delivery only;
  • Lawn care and landscaping;
  • Additional essential construction projects that include:
    • shipping and logistics;
    • broadband, telecommunications, and digital infrastructure;
    • any other project that supports the improved delivery of goods and services;
    • municipal projects;
    • colleges and universities;
    • child care centres;
    • schools; and
    • site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
  • Automatic and self-serve car washes;
  • Auto dealerships, open by appointment only;
  • Golf courses may prepare their courses for the upcoming season, but not open to the public; and
  • Marinas may also begin preparations for the recreational boating season by servicing boats and other watercraft and placing boats in the water, but not open to the public. Boats and watercraft must be secured to a dock in the marina until public access is allowed.

Although certain businesses are being permitted to reopen, it is critical that people continue to stay home, practise physical distancing and only go out for essential reasons, to pick up groceries, prescriptions or to keep a medical appointment.

On April 27, the government released A Framework for Reopening our Province, which outlines the criteria Ontario's Chief Medical Officer of Health and health experts are using to advise the government on the loosening of emergency measures, as well as guiding principles for the safe, gradual reopening of businesses, services and public spaces.

For more information from us about the new Health and Safety Association Guidance Documents for Workplaces During the COVID-19 Outbreak, go here:

http://wardlegal.ca/31587872329974

and here:

https://news.ontario.ca/opo/en/2020/04/health-and-safety-association-guidance-documents-for-workplaces-during-the-covid-19-outbreak.html?_ga=2.41393255.457691440.1588173943-912132074.1553015509

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CKL BUSINESSES - UPDATED CHEAT SHEET FOR THE NEW COMMERCIAL RENT SUBSIDY PROGRAM - WHAT YOU NEED TO KNOW

  • Reduces commercial rent by 75% if affected by COVID-19

  • Must pay less than$50,000 monthly rent to qualify

  • Must have stopped operating or suffered a 70% reduction in gross revenue

  • Available for April, May and June

  • Landlord must apply

  • Landlord pays 25% of monthly rent; tenant pays 25% to landlord; government gives loan to landlord for remaining 50%

  • Government loan is forgiven if landlord complies with program requirements

  • Must be a written “rent forgiveness agreement”, including a term for no eviction

  • Available to non-profits, etc.

  • More information here: http://wardlegal.ca/31586368607096

If landlord is unreasonable, inflexible (refused to apply to program), available options to defer or avoid commercial rent arrears are here: http://wardlegal.ca/31586368607098

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CKL BUSINESSES - NEW GOVERNMENT SAFETY RULES RELEASED TODAY FOR GRADUAL RE-OPENING - DOWNLOAD YOUR POSTER - WHAT YOU NEED TO KNOW

 

The Ontario government today released new sector-specific safety guidelines to business that will reopen during the pandemic.

They provide direction to those working in manufacturing, food manufacturing and processing, restaurant and food service, and the agricultural sector. These measures build on more than 60 guidelines developed by Ontario's health and safety associations in response to COVID-19 for various sectors such as retail, health care, construction, transportation, police services, firefighters, and transit employees. 

These new sector-specific guidelines feature recommended actions employers can begin to plan for as they prepare to adapt to the new reality during COVID-19, including:

  • Ways to ensure appropriate physical distancing, like eliminating pay-at-the-door options, holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.

  • Changes to the workplace, like installing plexiglass barriers, increasing the air intake on building heating, ventilation, and air conditioning (HVAC) systems to increase air flow, and using boot sanitizing trays.

  • Promoting proper workplace sanitation, providing personal protective equipment, substituting dry dusting with vacuuming, ensuring customer-facing staff are given hand sanitizer, providing a place to dispose of sanitizing wipes, and enforcing handwashing before and after breaks.

The government is also issuing posters to promote a variety of useful safety tips. The posters offer helpful advice on physical distancing and sanitation. They are downloadable from the Ontario.ca website so employers can print and post them in their workplaces.

Starting this week, 58 new inspectors will join the hundreds of existing provincial labour inspectors on the ground. The inspectors, which include workers from the Technical Standards and Safety Authority (TSSA) and the Ontario College of Trades (OCOT), will be tasked with communicating COVID-19 safety guidelines to essential workplaces or enforcing emergency measures, including physical distancing and the closure of non-essential businesses.

Link to the new guidelines: 

https://www.ontario.ca/page/resources-prevent-covid-19-workplace?_ga=2.171714016.1787025216.1588283825-1949137880.1584645365

 

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CKL EMPLOYERS - CHEAT SHEET - WHAT IF AN EMPLOYEE REFUSES TO GO TO WORK? THE BASICS.

WORK REFUSALS BY EMPLOYEES

  • Must be a “danger” to returning to work
  • Employers must fulfill the statutory duty to take any reasonable steps to ensure health and safety in the workplace – More information here: http://wardlegal.ca/31587872329926
  • All governmental orders and health officials’ recommendations should be followed in the workplace – More information here: http://wardlegal.ca/31587872329932
  • Consider thermal testing for employees – must also be mindful of balancing employees’ privacy – More information here: http://wardlegal.ca/31586368607052
  • If a dispute, Ontario Ministry of Labour must be contacted – a binding decision will be made
  • Employees may qualify for a job-protected, unpaid leave of absence under the Employment Standard Act – More information here: http://wardlegal.ca/31587872329926
  • New Infectious disease leave of absence is broad and includes need to care for a dependent, like a child during school closures  
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THE COURT'S RECENT STERN WARNING TO SEPARATED PARENTS - ACT REASONABLY DURING THE PANDEMIC, OR FACE THE CONSEQUENCES SOON

A stern warning recently by the Family Court to separated parents who act unreasonably, uncooperatively or who exercise self-help: 

"So perhaps I can go one step further.  Perhaps I can give high conflict parents a bit of a warning.

 

a.      Just because a Triage judge decides an issue isn’t urgent, it doesn’t mean the issue isn’t important.  It simply means we have to prioritize which issues we currently have the resources to deal with.

b.      The suspension of most court activities during the COVID-19 crisis means that – temporarily -- separated parents are largely going to be on “the honour system.”  

c.      We’re counting on parents to be fair and helpful with one another.  To rise to the challenge and act in good faith.

d.      Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay.

e.      How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness.

f.      Your reputation will outlast COVID-19.

g.      So please don’t try to take advantage of the current situation.

h.      In the long run, self-help will turn out to be a big mistake."

Case: 

McNeil v. McGuinness, 2020 CarswellOnt 4833 (Ont. S.C.J.) 

 

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CKL UPDATE - THE CERB AND EI - YOUR UPDATED CHEAT SHEET - WHAT YOU NEED TO KNOW

CANADA EMERGENCY RESPONSE BENEFIT (CERB)

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

  • Available between Mar. 15 and Oct. 3, 2020

  • Must be 15 and Canadian resident

  • Must have declared $5,000 total income in preceding 12 months or in 2019 (including by self-employment)

  • 7, 4-week eligibility cycles or claiming periods

  • Does not need to be consecutive claiming periods – maximum of 16 weeks (4 months) in total during entire period of program

  • Taxable benefit (not deducted at source; must be claimed in next personal income tax filing)

  • When first applying, cannot earn more than $1,000 from other sources for 14 or more consecutive days within the 4-week claim period

  • For future claim periods, cannot earn more than $1,000 income during the claim period

  • Cannot qualify if laid off, but earns income from other work or on reduced hours

  • Cannot voluntarily withdraw or quit – must qualify for an approved statutory leave of absence under the Employment Standards Act or work disruption must be related to COVID-19

  • Cannot be topped up by employers, unless the top up is not more than $1,000 in any 4-week claim period

  • Replaces EI regular benefits if unemployment occurs on or after Mar. 15, 2020

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

  • Note: payment of accrued vacation time if a lay off or termination could disqualify CERB (if more than $1,000 within 14 days before initial application or during the subsequent claim period)

  • Note: if recalled during a CERB claim period, resulting in income more than $1,000, may be required to repay the CERB during that claim period

Examples:

  • Salaried employee (including self-employed) – eligible if stops working for reasons related to COVID-19 (also eligible for CEWS and CEBA)

  • Sole proprietor – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

  • Own a corporation and paid by dividends, not salary – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

EMPLOYMENT INSURANCE (EI)

  • Can continue to work/earn income without disqualifying for EI

  • Can keep up to $0.50 of EI for each dollar earned – maximum is 90% of weekly insurable earnings used to calculate EI benefit

  • If more, EI deducted dollar-for-dollar against other income source

  • Means employers can gradually recall employees (including part-time) without disqualifying EI benefits for those recalled

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CKL EMPLOYERS - TIPS FOR RECALLING EMPLOYEES FROM LAY OFFS - WHAT YOU NEED TO KNOW

Employers in the City of Kawartha Lakes, tips to you for recalling employees from lay offs during the pandemic:  

  • Must recall before end of 13-week statutory period (within rolling 20 week period); maximum is 35 weeks during any 52-week period if certain conditions apply – otherwise deemed termination – More information about lay off rules and requirements is here: http://wardlegal.ca/31586368607034
  • Terms of recall must comply with the requirements of the Employment Standards Act, at a minimum
  • Check employment agreement, workplace policy or collective bargaining agreement, if any – must provide “greater right or benefit” compared to Employment Standards Act
  • No formal notice requirement/procedure, unless in an employment agreement, workplace policy or collective bargaining agreement, if any
  • If not recalled by statutory deadline, statutory entitlements triggered for most employees (but check for exemptions to statutory entitlement – construction workers, etc.)
  • May also trigger common law pay in lieu of notice (i.e., severance)
  • Employees must return, if recalled, within a reasonable period of time, or forfeit statutory entitlements (termination and severance pay, etc.) [Employment Standards Act Policy and Interpretation Manual, ss. 2(1), para. 7]
  • Employer must prove failure to return after recall – must be clear, written notice of recall and employee could read and understand the recall notice
  • Avoid verbal recalls – do it in writing
  • Avoid recalling for a short period of time to avoid paying statutory entitlements [Highland Cove Marina v. Van Velden and Babcock, Dec. 22, 1983, ESC 1531, Sheppard)
  • Must return to pre-lay off position – must be confirmed in the written notice of recall
  • Return to work notice should identify those employees being recalled, dates of recall and intention to provide a work schedule to those recalled
  • If staggering recalls, should recall in reverse order of lay offs (i.e., those laid off first will be recalled first), if possible
  • Return to work notice should confirm the recall is on the same terms of employ as pre-lay off
  • If any change to pay, work hours, etc. to be applied, must specify that in the written recall notice (and confirm intention to return to pre-lay off terms as soon as possible)
  • Return to work notice should explain further lay offs may be required, depending on developments and, if so, terms of initial lay off will apply
  • Return to work notice should remind recalled employees to notify the federal government (i.e., end the CERB, EI, etc.) to avoid double-dipping
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RESTARTING THE CKL ECONOMY - UPDATE - WHEN? HOW? WHAT YOU NEED TO KNOW

The federal and Ontario governments have agreed to common principles to gradually restart our economy:  

  1. taking a science and evidence-based approach to decision-making;
  2. coordination and collaboration between all jurisdictions;
  3. continued accountability and transparency of all governments; and
  4. flexibility and proportionality as information changes over time.

They jointly agreed on these mandatory criteria and measures to restart: 

  • COVID-19 transmission is controlled, so new cases are contained at a level that our health care system can manage;
  • sufficient public health capacity is in place to test, trace, isolate, and control the spread of the virus;
  • expanded health care capacity exists to support all needs, including COVID-19 and non-COVID-19 patients;
  • supports are in place for vulnerable groups, communities, and key populations. This includes the protection of seniors, residents of group living facilities, workers in close quarters, homeless people,  Indigenous peoples and those living in remote locations, health care workers and other essential workers, and inmates;
  • support and monitoring of workplace protocols are in place to keep Canadians safe at their jobs, and prevent the introduction and spread of COVID-19;
  • restrictions on non-essential travel are eased and managed in a coordinated manner; and
  • communities are supported in managing local disease activity, including in child care, schools, and public transportation, and industry and economic sectors are engaged to support the health of Canadians, reduce viral activity, and protect the economy as it restarts.
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CKL BUSINESSES AND LANDLORDS - THE NEW COMMERCIAL RENT DEAL - WHAT YOU NEED TO KNOW AS OF TODAY

City of Kawartha Lakes commercial tenants and landlords - what you need to know about the new, evolving commercial rent program available through the federal government: 

  • Reduces commercial rent by 75% if affected by COVID-19

  • Must pay less than$50,000 monthly rent to qualify

  • Must have stopped operating or suffered a 70% reduction in gross revenue

  • Available for April, May and June

  • Landlord must apply

  • Landlord pays 25% of monthly rent; tenant pays 25% to landlord; government gives loan to landlord for remaining 50%

  • Government loan is forgiven if landlord complies with program requirements

  • Must be a written “rent forgiveness agreement”, including a term for no eviction

  • Available to non-profits, etc.

  • More information here: http://wardlegal.ca/31586368607096

  • If landlord is unreasonable, inflexible (refused to apply to program), available options to defer or avoid commercial rent arrears are here: http://wardlegal.ca/31586368607098

 

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CKL EMPLOYERS - YOUR UPDATED CHEAT SHEET FOR THE NEW 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

Employers in the City of Kawartha Lakes, your updated Cheat Sheet of nee-to-know tips for the emergency wage subsidy and taking advantage of this benefit: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
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AS THE ECONOMY OPENS UP, IF I AM RECALLED TO MY JOB, CAN I REFUSE? WILL I BE FIRED OR SUSPENDED? WHAT IS MY RIGHT TO REFUSE TO GO TO WORK BECAUSE OF THE VIRUS?

If I am an essential worker (or permitted to work at my job), can I refuse to go to work because I am concerned about getting the virus? If so, can I collect the CERB?

If your employer is:

  • maintaining physical distancing in the workplace;  
  • practicing all federally, provincially and municipally ordered and recommended health advisory containment steps, including providing adequate hand-washing facilities; and
  • ensuring not to allow entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19,  or
  • has close contact with another person identified in the above points,

then if you refuse to attend your job, but you do not qualify for an authorized, job-protected, unpaid leave of absence under Ontario’s Employment Standards Act, you run the risk of being suspended, possibly without pay, and possibly terminated for non-attendance, leaving you with no severance pay, at law.

WILL I GET THE CERB?

If you have stopped working because of COVID-19, the Canada Emergency Response Benefit (CERB) may provide you with temporary income support. The CERB provides $500 a week for up to 16 weeks.

The Benefit is available to workers:

  • residing in Canada, who are at least 15 years old;
  • who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019 and October 3, 2020;
  • who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and,
  • who have not quit their job voluntarily.

When submitting your first claim, you cannot have earned more than $1,000 in employment and/or self-employment income for 14 or more consecutive days within the four-week benefit period of your claim.

When submitting subsequent claims, you cannot have earned more than $1,000 in employment and/or self-employment income for the entire four-week benefit period of your new claim.

WHAT LEAVES OF ABSENCE COULD I QUALIFY FOR TO AVOID RETURNING TO WORK?

If your employer is regulated by Ontario, as most are (except for banks, communications, transportation, etc.), you must qualify for one of Ontario’s legislatively approved leaves for a job-protected, but unpaid, leave of absence, such as the new Infectious Disease emergency leave. 

Employees have the right to take unpaid, job-protected infectious disease emergency leave if they are not performing the duties of their position because of specified reasons related to a designated infectious disease. This leave is available to all employees who are covered by Ontario’s Employment Standards Act.

Employers cannot threaten, fire or penalize an employee in any other way because the employee took or plans on taking an infectious disease emergency leave.

The only disease for which infectious disease emergency leave may be taken at this time is COVID-19. Although the Employment Standards Act was amended to include infectious disease emergency leave on March 19, 2020, the leave entitlements for COVID-19 are retroactive to January 25, 2020. 

HOW DO YOU QUALIFY FOR THE INFECTIOUS DISEASE LEAVE?

Employees can take infectious disease emergency leave if they will not be performing the duties of their position because of any of the following reasons:

  1. the employee is under individual medical investigation, supervision or treatment related to a designated infectious disease.The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country;
  2. the employee is following a COVID-19 related order issued under section 22 or 35 of Ontario’s Health Promotion and Protection Act;
  3. the employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued by:
    1. a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      • the Chief Medical Officer of Health or Associate Chief Medical Officer of Health;
      • a medical officer of health or an associate medical officer of health; and/or
      • an employee of a board of health;
    2. someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak);  
    3. Telehealth Ontario;
    4. the Government of Ontario or Canada;
    5. a municipal council in Ontario; and/or
    6. a board of health.

The information or direction may be issued:

  • to the public (in whole or in part);
  • to one or more people; and
  • through any means, including print, electronic or broadcast (for example, television or radio)
  1. the employee is under a direction given by his or her employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.

For example, this would include the employer directing the employee to stay at home for a period of time if the employee has recently travelled internationally and the employer is concerned the employee may expose others in the workplace to a designated infectious disease;

  1. the employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
    • the employee’s spouse (of the same or opposite sex, whether or not married)
    • 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 (currently there are no prescribed conditions)
    • any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

This includes an employee taking leave to care for their child whose school or day care was closed because of a designated infectious disease (in this case, COVID-19).

Examples include:

  • an employee who is providing care to an aunt who is sick with COVID-19
  • a babysitter who is in quarantine or isolation because of a designated infectious disease, or is sick because of it
  • a summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of a designated infectious disease
  • an employee’s 10-year-old brother, who was visiting the employee from another city without his parents, was unable to return home because of travel restrictions imposed to prevent the spread of a designated infectious disease

The employee can be providing the care or support in Ontario or in another province, territory or country.

  1. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employees travel back to Ontario is affected.

This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

WHAT ARE MY RIGHTS DURING MY LEAVE?  

Employees who take infectious disease emergency leave are generally entitled to the same rights as employees who take pregnancy or parental leave. For example, employers cannot threaten, fire or penalize in any way an employee who takes or plans on taking an infectious disease emergency leave.

WHAT OTHER LEAVES OF ABSENCE AVAILABLE TO ME?

There are different types of leaves under the Employment Standards Act, including:

  • sick leave
  • family responsibility leave
  • family caregiver leave
  • family medical leave
  • critical illness leave
  • bereavement leave
  • declared emergency leave

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

The purposes of the leaves, their length and eligibility criteria are different.

 

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MENTAL HEALTH AND ADDICTION SERVICES IN CKL - NEW EMERGENCY ORDER - MORE FLEXIBILITY TO PROVIDE ASSISTANCE TO THOSE IN NEED

New Ontario emergency order affecting employers who provide mental health and addiction services (“Mental Health Agencies”), per Ontario’s Emergency Management and Civil Protection Act: 
 
Mental Health Agencies now have broad discretion and flexibility to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak” of COVID-19 and “to respond to consequences arising from” COVID-19, including: 
• redeploy staff within different locations, despite collective bargaining agreements; 
• change the assignment of work, which can include assigning non-bargaining unit employees or contractors to perform bargaining unit work; 
• change scheduling or shift assignments; 
• defer or cancel vacations, absences or other leaves (regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise); 
• employ extra staff (whether full time, part time, temporary, contractors, volunteers) to perform work, including bargaining unit work; 
• provide training or education as needed to staff and volunteers to “achieve the purposes of a redeployment plan”; 
• conduct “skills and experience inventories” to identify alternative roles for staff “in priority areas”; and 
• collect information from staff about their availability to provide services including their health conditions or exposure to COVID-19. 
These steps are permitted even if contrary to any collective bargaining agreements currently in effect. 
If there were a grievance by a union, it is deemed to be suspended during Ontario’s State of Emergency.   
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WHAT MUST CKL EMPLOYERS LEGALLY DO TO PROTECT EMPLOYEES DURING COVID-19? WHAT YOU NEED TO KNOW.

Every employer in the City of Kawartha Lakes has a duty to take all reasonable steps to ensure the health and safety of employees, pursuant to Ontario’s Occupational Health and Safety Act.

According to Inspectors from the Ministry of Labour currently, generally in terms of COVID-19, this means:

  • maintaining physical distancing all times in the workplace;
  • ensuring adequate sanitation and hand-washing facilities;
  • performing adequate cleaning and disinfecting throughout the workplace;  
  • practicing all other federally, provincially and municipally ordered and recommended health advisory containment steps and precautions;
  • respecting the privacy of employees as much as possible in the circumstances, particularly if seeking information or conducting any screening; and  
  • using reasonable and best efforts to refuse entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19;
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test;
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19; and/or
  • has close contact with another person identified in the above points,

These relate to COVID-19, but there may be other health and safety obligations for employers, depending on the nature of the workplace and the operations. 

For more information from us about monitoring and screening COVID-19 in the workplace, go here: http://wardlegal.ca/31586368607052

For additional information, contact the Ontario Ministry of Labour, Training and Skills Development here: https://www.ontario.ca/page/ministry-labour-training-skills-development

 

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CKL - OUR NEW "REOPENING" PLAN - WHAT YOU NEED TO KNOW

April 27, 2020 – the Ontario Government announced it’s “Framework for Reopening our Province”.

  • no hard dates
  • no specific businesses or services identified
  • each stage is estimated to be two-to-four weeks, subject to virus containment

STAGE 1:

  • “select workplaces” that can immediately modify their operations to meet physical-distancing requirements, such as using curb-side pickup or delivery, will be allowed to open 
  • some outdoor spaces such as parks will be opened, and a greater number of people will be allowed to attend events such as funerals
  • hospitals will start rescheduling some surgeries and other postponed medical services 

STAGE 2:

- more workplaces allowed to open, including some service industries as well as retail and office workplaces 

- more outdoor spaces will open and larger public gatherings will be allowed

STAGE 3

- all workplaces will be reopened and restrictions on public gatherings will be relaxed further. However, large gatherings such as concerts and sporting events will “continue to be restricted for the foreseeable future" 

 

 

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NEW PANDEMIC TOP-UP TO FRONT LINE WORKERS - ADDITIONAL $4 HOURLY + $250 TO WORK LONGER HOURS

To provide additional support for front line workers fighting COVID-19, the Ontario government is now providing a temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020, and is expected to support over 350,000 frontline workers.

Eligible workplaces and workers for pandemic pay

The pandemic pay is designed to support employees on the frontlines of COVID-19 and does not apply to management. Eligible workplaces and workers include:

Health care and long-term care

Eligible workplaces

  • Acute hospitals
  • Long-term care homes (including private, municipal and not-for-profit homes)
  • Licensed retirement homes
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    •  Porters, cook, custodian, housekeeping, laundry facilities and other key workers.
  • Developmental services workers
  • Mental health and addictions workers

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities/shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licensed children's residential sites
  • Directly operated residential facility ― Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite/drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels/motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (e.g. developmental service workers, staff in licensed children's residential sites, in-take/outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • TRILCOR personnel
  • Native inmate liaison officers
  • Chaplains
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CKL EMPLOYEES - A NEW TAX BREAK FOR YOU IF YOU BUY PERSONAL COMPUTER EQUIPMENT - NOT A TAXABLE BENEFIT TO YOU ANYMORE

April 22, 2020 - the Canada Revenue Agency (the “CRA”) announced it would allow special, favorable tax treatment to employees working from home during the COVID-19 pandemic. 

The CRA will accept that the reimbursement of an employee, for amounts spent on personal computer equipment to enable the employee to work from home, will not be a taxable benefit to the employee. This relief is to apply for amounts up to $500 and only in respect of amounts for which the employee provides receipts.

This departs from the standard-course taxation of home office expenses, according to which if an employee receives a reimbursement for home office equipment, it is characterized as a personal expense, primarily for the employee’s benefit, and therefore a taxable benefit.

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CKL BUSINESSES - WHAT DO YOU DO IF YOUR LANDLORD IS UNREASONABLE AND REFUSES TO APPLY FOR THE NEW COMMERCIAL RENT LOAN? YOUR TWELVE-STEP ANSWER......

What if your commercial landlord is inflexible and uncooperative and refuses to participate in the new Canada Emergency Commercial Rent Assistance (CECRA) program, reducing your monthly commercial rent in April, May and June, 2020 to a maximum of 25%?

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    in writing, promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from 75% your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    if your landlord refuses to participate in the CECRA, in writing, request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    in writing, request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:

http://wardlegal.ca/31586368607060

 
 
 
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COVID-19: 8 EASY/SIMPLE STEPS TO HAVE BETTER ZOOM SECURITY.

Zoom remains popular for video conferencing during the pandemic.

Zoom has made security upgrades after the initial controversy.

Here are eight additional tips to achieve better Zoom security and management for your vide conferencing:

[1] Use a password:

- only participants with the meeting ID and password may join in

- remove the password from email invitations; deliver it separately to each participant

[2] Disable the “joint before host” feature/option:

- as host, only you should control who participates using a verified Zoom account and log in

[3] Disable file sharing:

- use the Chat function to do so

- use alternative ways to deliver or exchange e-records

[4] “Lock the meeting”:

- when all participants have jointed, “lock the meeting” to prevent uninvited guests from crashing

[5] Adjust your settings to only those necessary for the specific meeting:

- disable chat, screen sharing, file sharing, annotation and whiteboard features, unless they are necessary for the specific meeting

- if not disabled, monitor them closely as the host

[6] Use and promote netiquette at the outset and throughout the meeting;

- consider using a checklist to manage the meeting and record the events during the meeting

[7] Recording the meeting:

- only with the consent of each participant, which needs to be recorded

- speak with Zoom to verify where the meeting will be stored in the “cloud” to ensure privacy and security is maintained

[8] Watch for and download/install Zoom updates and upgrades – refresh your settings before each meeting.

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CKL BUSINESSES - WORKING AT HOME HAS SURGED - YOU'RE ALSO NOW ONLINE TO SURVIVE - SEVEN STEPS FOR PREPARING FOR AN IT FAILURE AND TO REDUCE YOUR LIABILITY RISKS

Due to the pandemic, the surge in work-from-home arrangements has caused strain and pressure on information technology (“IT”) providers.

Internet broadband providers, cloud-based businesses and virtual private network operators (“VPN”s) may be unable to keep pace with the new IT requirements for their clients’ businesses (collectively, “IT Providers”).

The result may be business interruption, additional time required to manage IT-related issues or other unanticipated resource allocation. 

To protect your business and prepare for this change in the IT world, you should:

[1]      Review your contract with your IT Providers:

  • is there a “force majeure” clause, or any clause addressing the interruption of IT services due to a health emergency or other reason?

For more information from us about non-performance clauses in contracts during COVID-19, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

  • is there any clause about a material change in circumstances (i.e., adverse change) that may be triggered due to COVID-19?
  • is there any clause about whether temporarily not provide IT services will constitute a breach of your contract?
  • is there any clause in the contract that may limit or exclude the liability of the IT provider for non-performance?
  • is there any clause that imposes a time limit, or procedure by which, your claim must be made against the IT Provider, if any?
  • is there any clause requiring you to “mitigate” your damages and, in any event, should you discuss any available alternatives with the defaulting IT Provider, or arrange for another IT Provider to provide your services?

[2]      Check your commercial insurance policies:

  • do you have business interruption coverage?

For more information from us about this coverage, go here: http://wardlegal.ca/31582887996638

  • do you have emergency or public health coverage?
  • do you have any coverage that may be triggered due your IT Provider’s failure to provide services to you?
  • discuss with your broker whether such is available, if you do not have it, and consider amending your policy for that coverage
  • make sure you know what, if any, notice requirements you have vis-à-vis your insurance company if your IT Provider fails to perform, including if you intend to make a claim as a result

[3] Get your contingency plan ready:

If you may experience non-performance by your IT Provider, consider:

  • doing a full assessment of your business and its operations in terms of reliance on IT services;
  • evaluating the potential impact of non-performance by your IT Provider on your ability to continue your business; and
  • identify other options and have your contingency plan ready.

[4]      Get your workplace policy implemented for working-from-home (i.e., remote) arrangements:

  • implement your policy and have all employees acknowledge and agree, in writing;
  • consider incorporating:
    • productivity expectations;
    • action plan in the event of the failure of an IT Provider; and  
    • reporting system for any IT disruptions.

[5]      Get your date breach/privacy protocol workplace policy in place, as required by law

[6]      Monitor IT services carefully to detect any failure or breach and carefully record any incident

[7]      Carefully monitor e-fraud during the pandemic, which is rampant, including:

  • any requests for payment, especially any request to change payment or account details;
  • ensuring your employees speak personally with the third party to verify the payment arrangements;
  • check and double-check emails addresses and other contact information for third parties where funds are involved, including based on historical information;
  • always ask for confirmation via a new email (not a chain); and  
  • act quickly and decisively if fraud is detected.

 

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CKL BUSINESSES AND LANDLORDS - THE NEW DEAL FOR RENT DURING THE PANDEMIC - SUBSTANTIAL REDUCTION TO ONLY 25% - WHAT YOU NEED TO KNOW

The federal Government announced today it will in partnership with the Ontario government implement the Canada Emergency Commercial Rent Assistance (“CECRA”) for small businesses in the City of Kawartha Lakes: 

  • commercial rent is reduced by 75% for small businesses affected by COVID-19 [i.e., businesses paying less than $50,000 per month in rent and who have temporarily ceased operations or have experienced at least a 70% revenue reduction];
  • eligible landlord applies for forgivable loan(s) to cover 50% of three monthly rent payments - April, May and June;  
  • landlord loans will be forgiven if the mortgaged property owner agrees to reduce the rent by at least 75% for these three months under a “rent forgiveness agreement”, which will include a term not to evict the tenant while the agreement is in place;  
  • the small business pays the remainder, up to 25% of the rent; and
  • also available to local non-profit and charitable organizations.
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LEGAL LIABILITY FOR ENGAGING IN ASIAN-BASED DISCRIMINATION - THERE IS A LEGAL CONSEQUENCE TO DOING SO.

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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MAKE YOUR ESTATE PLAN VIRTUALLY WITH YOUR LAWYER - OR WHAT YOU NEED TO KNOW TO MAKE A D-I-Y WILL AND POWERS OF ATTORNEY

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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COVID-19- WORKING AT HOME - BEST PRACTICE AND TIPS TO BOTH EMPLOYERS AND EMPLOYEES

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that 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.

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IF A PERSON SUCCUMBS TO COVID-19 (WITH NO VALID POWER OF ATTORNEY), WHO MAKES THE HEALTH CARE DECISIONS? WHAT YOU NEED TO KNOW.

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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EXTENSIVE NEW FINANCIAL AID TO STUDENTS TODAY - YOU'LL NEED A CALCULATOR TO DECIDE WHICH WAY TO GO - WHAT YOU NEED TO KNOW.

April 22 – The federal Government announced new financial aid to students – they can now claim a new Canada Emergency Student Benefit (“CESB”).

Under the CESB, eligible post-secondary students could receive $1,250 monthly from May to August. If that student is also taking care of someone else or has a disability, that amount increases to $1,750 monthly.

College and university students currently in school, planning to start in September, or who graduated in December 2019 are eligible.

In addition, working students earning less than $1,000 per month can also apply.

The new benefit will require legislation, but the federal Government promised to promptly roll this out. 

In addition to the CESB, the federal Government also announced more financial assistance to young people:

  •  creating an additional 76,000 jobs for young people in certain sectors, or that are on the frontlines of this pandemic;
  •  investing more than $291 million to extend scholarships, fellowships, and grants for three or four months;
  •  launching a new Canada Student Service Grant of between $1,000 and $5,000 for students volunteering in the COVID-19 fight; and
  • doubling the student grants that the government gives out for the 2020-21 school year.

This new benefit is intended to address the ‘gap’ for students who did not qualify for the CERB, due to the condition that they must have reported $5,000 in income in the past twelve months.

Earlier, the federal government announced temporary changes to the Canada Summer Jobs program to help students find work in a largely locked-down country once their summer begins.

Now, employers who hire summer students can apply for a subsidy of up to 100 per cent of the Ontario minimum wage. This is for the age range of 15 to 30.

For many students and employers in the City of Kawartha Lakes, this raises new questions. For example, financially is a student better off volunteering to receive a service grant, or having a job that's fully or partly-funded under the revised Canada Summer Jobs program, or even the 75%  wage subsidy if an employer qualifies and is applying for that next week? Get out a calculator – there is math that needs to be done.  

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - EMPLOYEES CAN VOICE CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL BUSINESSES - BALANCING CYBER-SECURITY, EMPLOYEES' PRIVACY AND THE WORKING-AT-HOME RELATIONSHIP. TIPS AND WHAT YOU NEED TO KNOW.

Great article today in Kawartha Lakes This Week, featuring our advice and comments about balancing cyber security, employees' privacy and working-at-home relationship during the pandemic: 

______________________

Working online, from home? Protect yourself from cyber criminals

The COVID-19 Pandemic has forced many Kawartha Lakes businesses to rely on the online market for the first time

NEWS 03:00 AM by Sarah Sobanski  MyKawartha.com

As businesses head online to continue their work through the pandemic, they need to consider cybersecurity threats and their legal obligations regarding the confidentiality of personal information and remote work. - Torstar file photo

It takes careful planning to make it as a small-business owner – and COVID-19 has thrown many into the deep end of the online market without precedence.

Jason Ward, owner of Wards Lawyer PC, says he’s fielding nearly 100 emails a day filled with questions about work-from-home policies, privacy, COVID-19 regulations, support and more.

At Netmechanics, owner Graeme Barrie is busy, too. He’s working with the Innovation Cluster on cybersecurity workshops and advising businesses on cyber threats to their information and employees.

Many businesses are not only using new technology to do business, but using well-established tech in different ways such as sharing information via email they might have otherwise shared in a one-on-one conversations.

 

“Cyber criminals, they love a crisis,” Barrie says, adding that businesses should be vigilant when it comes to communications.

The video-conferencing application Zoom has been a popular choice for businesses since COVID-19 sent people to work from home. The app has seen its number of users skyrocket from around 10 million in December to more than 200 million users.

With its increasing popularity have come increasing privacy concerns. Various media outlets have reported security breaches such as easily accessing Zoom-recorded meetings online and cyber criminals hijacking meetings.

You can be held responsible if the information of your clients or your employees is hijacked, Ward says.

“Businesses are now required by law to have what’s called a privacy breach protocol workplace policy,” he says, for businesses that collect information online. The protocol outlines what steps a business will take if there is a breach of personal information.

“A small business in Lindsay might not have the resources to be as cyber-secure as a larger corporation,” Ward says, noting the government recognizes this in its legislation.

“But you must by law, if you are compromised, have a policy mitigating steps you will take to minimize the damage. If you have that policy, and you take those appropriate steps to satisfy (the government), then the penalty to you is not likely to be as severe.”

Ward adds that businesses need to make sure they have good privacy policies in general when it comes to protecting consumer information in compliance with federal and provincial laws – and that extends to online.

Why would cyber criminals want that information? Barrie says it's often for ransomware attacks, where cyber criminals will hold your information hostage for payment. They can also gain access to your computer and collect your information without you noticing.

“They make more money off the ransomware because data is the heart of so many businesses, they know that it’s critical,” he says.

He notes that startups may be the target of intellectual property theft or corporate espionage. Some small to medium-sized businesses may be the target as part of a supply chain to a larger company.

One way to gain access to your computer and information are phishing scams. These scams trick you into giving access to cyber criminals through links in emails or via text message.

For businesses who suddenly find themselves having to do everything online, Barrie’s best advice is to get educated. He says you can’t protect against what you don’t know about.

While e-learning and considering how cybersecurity and privacy legislation go hand in hand, business owners might also consider brushing up on workplace legislation and how employees are able to work from home through online connections.

Ward says Ontario’s Occupational Health and Safety Act doesn’t apply to working from home, but in a scenario such as this pandemic, it could be applied in the future. Business owners should consider developing a remote working policy.

“Managing the working from home relationship is a challenge,” he says. He notes employees are dealing with a lot at home from distractions to obligations – it can be challenging and stressful. Employers may need to make compromises.

Employers and employees need to work together to define expectations, including for productivity. Ward says there are applications to supervise remote work.

“Many businesses, the monthly revenue coming in relies on the productivity of the employees,” he says.

“Employees have to understand that if your output isn’t at a certain level, we have to look at alternatives for that particular employee.”

Understanding expectations can be imperative when businesses are struggling to sustain themselves until the end of the pandemic.

“I fully anticipate that we’re going to be seeing new legislation ameliorating what the consequences are for having to lay people off, particularly if you were declared a non-essential business.”

by Sarah Sobanski

Email: ssobanski@mykawartha.com

 

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CKL SENIORS AND VULNERABLE RESIDENTS - CHARITIES AND NON-PROFITS - NEW FEDERAL EMERGENCY FUNDING

Today more federal funding was announced, focusing on the vulnerable in the City of Kawartha Lakes, including our seniors. 

The government allocated $350 million to support vulnerable Canadians through charities and non-profit organizations that deliver essential services to those in need.

The newly-announced Emergency Community Support Fund will flow through national organizations that have the ability to get funds quickly to local organizations that serve vulnerable populations. It will support a variety of activities, such as:

  • Increasing volunteer-based home deliveries of groceries and medications
  • Providing transportation services, like accompanying or driving seniors or persons with disabilities to appointments
  • Scaling up help lines that provide information and support
  • Helping vulnerable Canadians access government benefits
  • Providing training, supplies, and other required supports to volunteers so they can continue to make their invaluable contributions to the COVID-19 response
  • Replacing in-person, one-on-one contact and social gatherings with virtual contact through phone calls, texts, teleconferences, or the Internet

 

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - WORKERS ABLE TO EXPRESS CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL RESIDENTS - RELATIONSHIP BREAKDOWN DURING COVID-19? WAIT - BEFORE YOU SETTLE ANYTHING - READ THIS AND BE VERY CAREFUL.

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

In addition, there are other important considerations before resolving a relationship breakdown during, or following, the pandemic, particularly relating to the content of the separation agreement that may be entered. 

Below is an excellent list of issues that need to be carefully reviewed before finalizing any settlement of a relationship breakdown during, or related to, the pandemic, published on April 20, 2020 by Lorne Wolfson, a lawyer at the Toronto firm, Torkin Manes: 

  1. In the absence of formal screening by a qualified third party screener, a family lawyer cannot know if his or her client is entering an agreement under duress or undue influence, the risk of which is particularly heightened if the parties are still co-habiting under the same roof. The standard solicitor’s certificate, “My client is not suffering from duress or undue influence,” should be amended to reflect the particular circumstances in each case.
  2. Property settlements that rely on asset valuations or support arrangements that are based on current or proposed incomes should be viewed with caution since the value of assets and the level of incomes could suffer dramatic changes within days of finalizing a settlement. For property division, an “if and when” asset division may protect both parties against an unfair and unexpected drop in the value of a major asset. Support arrangements should clearly articulate the income assumptions on which the settlement is based, so that there is no doubt if a future decline in income constitutes a “material change in circumstances” from that which prevailed at the time the agreement was signed.
  3. In order to avoid a dispute in the future as to what constitutes a “material change in circumstances,” the agreement should contain an acknowledgment that a change in either party’s income of X per cent or $Y is deemed to constitute a “material change.” The agreement should also formally acknowledge that a change in circumstances that was foreseeable at the time the agreement was signed may still constitute a material change in circumstances.
  4. When an agreement is being signed without full financial disclosure or without all of the information that would usually be required, it should clearly be expressed to be a temporary, without prejudice agreement that will stay in force until a future date or event (a further agreement, a future variation or review, or when the courts resume regular operations).
  5. Non-variable support agreements should be viewed with particular caution. In the past, many payors were prepared to pay a lump sum in exchange for a full and final spousal support release. Today, such agreements may be more fraught with risk. Even if the non-variation clause is drafted to permit a review if there is a “catastrophic” change in circumstances, that exception still leaves open the possibility of a dispute as to what constitutes a “catastrophic change.”
  6. Variation in child and/or spousal support can also be justified even if there have been no changes in the incomes of the parties. For example, s. 7 expenses that were previously being shared (childcare, summer camp, activities and access costs) may no longer be incurred. In the absence of these expenses, the level of both child support and spousal support may need to be adjusted.
  7. Given the health threat posed by the current pandemic, security for support and equalization payments takes on enhanced importance. The presence or absence of life insurance, the appropriate level of insurance and what insurance can be obtained at what cost if either party loses his or her employment are issues that should be canvassed.
  8. In a majority of cases, the time the children spend in the care of each parent will not need to be changed. However, where parents are now working from home, are not working at all because of the loss of their employment or the division of parenting time necessitates a change to the residential schedule, the impact of these changes on child and/or spousal support needs to be carefully considered.



 

 

 

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IF I'M LAID OFF, OR CANNOT WORK, BECAUSE OF COVID-19, DO I HAVE TO PAY MY SPOUSAL SUPPORT? WILL THE COURT HELP ME OUT DURING THE PANDEMIC? WHAT YOU NEED TO KNOW.

WHAT CAN BE TAKEN TO COURT CURRENTLY?

Firstly, during Ontario’s State of Emergency, all limitation periods have been suspended. If you have a case that must be commenced, legally, by a certain date, that date is now extended at least until after the State of Emergency is ended.

Secondly, the Ontario Courts have made it very clear they are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for Court proceedings whenever possible.

Thirdly, only “urgent” matters will be heard by the Court – whether a matter is “urgent” will require initial judicial review. If that threshold is passed, the Court will give directions for how the issues will legally be determined.

Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

  • were considered urgent prior to the suspension of Court operations;
  • are directly related to the COVID-19 pandemic;
  • may interrupt the closing of a real estate transaction;
  • involve a judgment debtor attempting to remove assets;
  • involve the expiry of a government-issued permit; and
  • involve termination of commercial leases.    

The Court has also in some cases extracted urgent issues from within broader legal matters.

Even where a matter is found to be urgent initially, the Court is likely to initially appoint a Justice to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

In some cases, the Court may also relax the legal formalities that would otherwise be strictly enforced, like how evidence is accepted by the Court – a case-by-case approach is being taken.

IS VARYING OR CHANGING SPOUSAL SUPPORT CONSIDERED URGENT?

COVID-19 may have removed or reduced a spousal support payor’s income, particularly if he or she owned/operated, or worked for, a “non-essential” business, per the Ontario Government’s continuing emergency order(s).

However, while that is certainly an urgent issue financially speaking, it may not be urgent legally.

Whether a spousal support payment may be varied or changed depends on several factors, including:

  • whether the parties were married to each other and, if so, the federal Divorce Act applies;
  • the specific language or wording of the parties’ separation agreement or Court order;
  • whether there has been a “material change in circumstances” that has some degree of continuity, rather than a temporary change, triggering the ability to review the support issues; and
  • other factors underlying the relationship when the agreement was signed or the Order was made and currently, such as the recipient’s need, the payor’s ability to pay, etc.

So far, the Court takes the position that support payor’s request to vary or change his or her spousal support payments does not qualify as an urgent matter in Family Court.

Rather, the Court indicates that requests to vary or change spousal support payments, if legally permitted to do so, may be made by payors retroactively at a later time.

There have been a number of cases to date indicating the Court’s position on this issue [Purdy v. Purdy, 2020 CanLII ONSC 1950; Baker v. Maloney, 2020 CanLII ONSC 1929, etc.]

Accordingly, both parties must use their best efforts to work together, to try to reach a temporary arrangement during the pandemic, even on a “without prejudice” basis.

Neither party will benefit from a surge in Family Court proceeding arising from COVID-19, when the Court’s operations expand.

While the pandemic continues, absence exceptional circumstances, neither a receiving nor paying party is likely to utilize the Family Court to demand, or vary, spousal support payments.

These are not fault-based, or blameworthy, circumstances for the most part – the pandemic was reasonably unforeseeable by most parties who previously separated.

As a result, practical sense and pragmatism must prevail, failing which delayed, protracted and challenging litigation will likely ensue.  

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CKL BUSINESSES - OUR TOP 12 TIPS TO HELP YOU WITH YOUR COMMERCIAL RENT DURING THE PANDEMIC

CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:

[1]    promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from your monthly rent for April, May and June, 2020;

[2]    apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses,

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;

[10]   contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);

[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and

[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.

For more information from us about the step-by-step guide to assist you, go here:  http://wardlegal.ca/31586368607060

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PARENTING DISPUTES DURING COVID-19 - THE CHILD IS PROTECTED BY THE CONSTITUTION, TOO - MINIMIZING RISK OF EXPOSURE IS ESSENTIAL

Section 7 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

During the COVID-19 pandemic, parenting disputes potentially trigger this constitution right; namely, security of the person, for not only the child or children at issue, but both parents, too. Canada’s Supreme Court has recognized and acknowledged this right for both in family-related disputes. 

To the extent the parents cannot co-operatively resolve their parenting arrangements by reasonable, mutual agreement, but rather one or both requests the intervention of the Family Court on the basis of urgency, the Court will be mindful of a child’s constitutional right to security of the person, which arguably includes limiting, or minimizing, exposure to COVID-19.

If a child is to be removed from the care of a parent, it must “only be done in accordance with the principles of fundamental justice which are found in the basic tenets of our legal system.”

These principles of fundamental justice are both substantive and procedural in nature.

The section 7 right of the security of the person is recognized judicially to protect both the physical and the psychological integrity of the individual [R. v. Morgenthaler, 1988 CanLII 90 (SCC)].  

Any judicial decision by the Court impacting the removal of a child from a parent’s care must incorporate a fair and reasonable hearing process by the Court [Kawartha-Haliburton Children Aid Society v. M. W., 2019 ONCA 316, paras. 68 and 69].

As noted by the Court in Ontario recently, “Given the above, I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.” [Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167].

So, in any matter affecting the security of a child during the pandemic, the process for judicial determination must be both substantively and procedurally fair, not only for the child in question, but for the parents or guardians who cannot reasonably agree to the temporary arrangements during the pandemic.

 

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CKL BUSINESSES STILL OPERATING OR ABLE TO WORK REMOTELY - KEY INFO FOR THE EXPANDED WAGE SUBSIDY (75%) NOW AVAILABLE TO KEEP OR HIRE BACK EMPLOYEES. WHAT YOU NEED TO KNOW.

On April 11, 2020, the COVID-19 Emergency Response Act, No. 2, which includes the Canada Emergency Wage Subsidy (the “CEWS”), received Royal Assent and is now available to employers.

Am I eligible?

The CEWS is available to all “eligible employers,” which includes individuals, corporations, partnerships, non-profits and registered charities. In order to qualify for the CEWS, employers must attest to and provide documentation supporting a decline in monthly revenues of at least 15% in March, and 30% in April and/or May, as compared to either:  (i) that same month in 2019; or (ii) the average of the employer’s January and February, 2020 revenue. In calculating revenue for eligibility purposes, employers may use either an accrual (as-earned) or cash (as-paid) accounting method. However, whichever method is chosen must be used in determining eligibility for each of the three months. Affiliated employers are able to compute revenue on a consolidated basis, or on an individual basis. There are special rules for computing revenue for employers who engage in non-arm’s length transactions such as sales to affiliated corporations.

How much is the CEWS?

The CEWS program provides employers with a wage subsidy for a given employee of up to $847 per week, retroactive to March 15, 2020, for eligible remuneration paid for the period between March 15, 2020 and June 6, 2020 (even newly hired employees). The eligible periods to claim the CEWS are: March 15 to April 11, 2020, April 12 to May 9, 2020, and May 10 to June 6, 2020. The CEWS does not obligate the employer to top-up the employee’s wages above the subsidized amount.

How do I apply for the CEWS?

Eligible employers can apply for the CEWS through the Canada Revenue Agency’s My Business Account portal. Employers will have to attest to and provide records of their reduction in revenues and remuneration paid to employees. An employer that qualifies for one subsidy period (e.g. March) automatically qualifies for the subsequent period (e.g. April).

Does the CEWS replace the 10% temporary wage subsidy announced in March?

The CEWS does not replace the 10% temporary wage subsidy announced by the federal government in March. Employers that are not eligible for the CEWS may still qualify for the 10% subsidy, which remain available to certain categories of employer and does not require a reduction in revenue in order to qualify.

Can I get both subsidies?

An employer cannot take advantage of both subsidies simultaneously. For employers that qualified for the temporary wage subsidy and the CEWS, the amount of the temporary wage subsidy will be deducted from the subsidy under the CEWS program.

Does this mean that I can re-hire all of my employees - a limitation on your reimbursement?

By providing a subsidy of up to $847 per week per employee, with no overall limit, the CEWS is designed to encourage employers to re-hire employees that had to be terminated or laid-off due to COVID-19. However, in deciding whether – and when – to bring back employees, employers should keep in mind that a subsidy will not be available in respect of remuneration paid to employees that have been without remuneration for more than 14 consecutive days in a given eligibility period. This means that if an employer terminated an employee on April 11, rehires the employee but that employee does not receive remuneration for at least 14 consecutive days between the April, 12 to May 9, 2020 eligibility period, the employer would not be eligible for a wage subsidy in respect of remuneration paid to that employee during that period.

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NEW HEALTH UNIT ORDER - WHEN WE ARE LEGALLY REQUIRED TO SELF-ISOLATE. WHAT YOU NEED TO KNOW.

On April 14, 2020, the local Medical Officer of Health issued the following Class Order under Section 22 (5.01.1)  under the Health Protection and Promotion Act. This order is designed to protect the health of local residents by reducing the spread of COVID-19 in the City of Kawartha Lakes. 

The order applies to ALL persons in the City of Kawartha Lakes who:

  • are identified as a person diagnosed with COVID-19
  • have the signs and symptoms of COVID-19, have been tested for COVID-19 and are awaiting the results of their test
  • otherwise have reasonable grounds to believe they have symptoms of COVID-19,  or
  • are a close contact of a person identified in the above points.

As of April 14, 2020 at noon, you must:

  • Isolate yourself without delay as instructed by the HKPR District Health Unit. This includes: remaining in your home or isolation facility. Do not go outside, unless on to a private balcony or enclosed yard where you can avoid close contact with others. You must not have any visitors into your home except as permitted by the Health Unit.
  • Remain in isolation until the expiry of a 14-day period that begins on the day on which you first show symptoms, are tested, or are diagnosed with COVID-19 (whichever is earliest, or on the last day of close contact). Follow these guidelines unless instructed otherwise by the Health Unit. 
  • During the self-isolation period, reduce exposure to others to prevent the spread of infection or potential infection from COVID-19. Follow infection control instructions on the HKPR District Health Unit website (www.hkpr.on.ca) or those given to you by the Health Unit or any other staff of a healthcare facility to which you may seek or receive treatment.
  • Keep away from vulnerable persons. Follow any further instructions provided by the Health Unit pertaining to COVID- 19. In particular, you should seek clinical assessment over the phone – either by calling your primary care provider’s office or Telehealth Ontario 1-866-797-0000. If you need additional assessment, your primary care provider or Telehealth Ontario will direct you to in-person care options.
  • Seek prompt medical attention if your illness worsens by calling 911 and telling responders of your COVID-19 related diagnosis or symptoms.
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CKL BUSINESSES - CAN'T PAY RENT? INFLEXIBLE LANDLORD? YOUR STEP-BY-STEP GUIDE TO KEEPING YOUR RENTED SPACE AND PAYING YOUR COMMERCIAL RENT (OR DEFERRING IT). PROTECTING YOUR BUSINESS TO MOVE FOWARD.

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

During Ontario’s State of Emergency (as of Mar. 17, 2020), many businesses in the City of Kawartha Lakes (“CKL”) have been deemed non-essential and forced to close, or substantially reduce operations. Even “essential” workplaces face lay offs, work shortages and possibly closure, at least temporarily.

For both essential and non-essential businesses, tremendous strain is imposed on commercial tenancy relationships.

It is estimated that up to one-half of businesses may be unable to pay commercial rent during the pandemic, particularly those in the food, human services and hospitality sectors.

While the federal government has recently announced financial support for landlords, thereby alleviating tenants from paying rent temporarily, the details have yet to be revealed.

Effectively, it is critical that landlords and commercial tenants act co-operatively, reasonably and flexibly during this crisis, in both their best interests. For example, owners of commercial spaces should consider offering independent tenants an automatic, sixty-day, interest-free rental deferral, with a possibility of further extension depending on the ongoing status of the pandemic.

However, some landlords may not be doing so, leaving the tenant in very difficult circumstances. 

To address landlords that do not act flexibly, the Ontario government (or federal government) must consider proactively enacting legislation, or other measure, prohibiting the forfeiture of commercial leases as of March 15, 2020 to, for example, June or July 30, 2020, or possibly longer depending on the development of the crisis, for commercial tenants failing to pay rent. 

If no deferral arrangement, or other solution, is agreed to by the landlord and tenant themselves, and there is no legislative intervention by either government, the issue becomes challenging to address, legally. These are unique, novel and unprecedented circumstances, legally speaking. It will be difficult to decide which commercial tenancy party should be burdened by the financial loss caused by a global pandemic, beyond either party’s reasonable expectations or control. How is the loss, which both will suffer, to be legally allocated?

Even if a deferral is agreed to, or the government intervenes to grant relief from forfeiture for non-payment of rent, it may not resolve the issue of resumption of the lease when the parties are able, or permitted, to do so. For example, a commercial tenant may financially be unable to accumulate and pay rental arrears when operations resume – rather, it is likely the business will initially struggle to pay current expenses to ramp up and continue, let alone back-pay of rent. 

WHAT CAN THE LANDLORD DO FOR NON-PAYMENT OF RENT?

Currently in Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a)   affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b)   affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a Court order to the same effect);

(c)   affirm the lease and exercise rent distress rights (seizure of property assets); or

(d)   accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

It is likely that most commercial landlords with small-business tenants will elect (d) above during the pandemic.

CURRENTLY NO JUDICIAL ENFORCEMENT OF COMMERCIAL EVICTIONS:

However, due to the pandemic, the owner’s ability to take action, including to terminate, re-enter and sue for damages under (d) above, is currently fettered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the ONSC currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the ONSC as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the ONSC, enabling the landlord to obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE ALSO SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

If you are a commercial tenant unable to pay rent, with an inflexible landlord, take these steps:

[1]     STEP ONEApply for the CEBA:

On April 16, 2020, the federal Government announced additional measures to support small businesses, including expanding the Canada Emergency Business Account (CEBA), which provides interest-free loans of up to $40,000 to small businesses and not-for-profits, to include businesses that paid between $20,000 and $1.5 million in total payroll in 2019. This new range will replace the previously qualifying range of $50,000 to $1 million in total payroll.

Commercial tenants struggling financially should apply for this interest-free line of credit, $10,000 of which is forgivable by the government if it is repaid by December of 2020.

[2]      STEP TWORequest your landlord to apply for CECRA:

In addition to the expanded CEBA above, the federal Government also introduced Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. The program will provide loans, including forgivable loans, to commercial property owners who in turn will lower or forgo the rent of small businesses for the months of April (retroactive), May, and June, 2020. Implementation of the program will require a partnership between the federal government and provincial government, which is responsible for property owner-tenant relationships. 

[3]      STEP THREEReview your commercial insurance policy:

[a]     Check for Business Interruption insurance coverage:

You should also consider contacting your insurance broker about your commercial insurance policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers in Ontario are denying this coverage, but there is already a class action lawsuit commenced in Ontario by commercial tenants claiming damages against those insurers for the denial.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

[b]     Check for other potential insurance coverage:

There may be other potential coverage under your tenant’s policy, such as:

1.    Civil Authority Insurance – covering losses arising from a government orders preventing access to the insured property. Of course, for this coverage to come into effect, there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e., closing office space), will meet this threshold. However, they may be addressed in a force majeure clause. In this case, the Ontario government has ordered the closure of non-essential workplaces during the State of Emergency, potentially triggering this insurance coverage; and

2.    Liability Insurance – covering losses arising from “third party” claims - a “third party” is anyone not insured under the policy, which could include the landlord or the tenant. Currently it is unsettled whether any liability will arise from third parties contracting COVID-19 from, or while on, an occupier’s premises. However, these policies will come into effect for defending such claims if and as they arise.

[4]      STEP FOUR - Review your lease:

Carefully review your lease agreement and check for:

[a]   dates to meet any obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]   any clause obliging you to stay open for business during the term of the lease, given the Ontario government’s emergency order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building and, if so, either the doctrine of frustration or force majeure may be triggered, as explained below; and

[c]   any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[5]   STEP FIVE

Review your lease for any “Force Majeure”/Unavoidable Delay Clause(s):

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

These clauses may, in certain circumstances, excuse a tenant’s failure to perform contractual obligations, like paying rent. They are commonly incorporated into commercial leases.

For example, your lease may contain a clause requiring you to stay open and operate during regular business hours during the lease. If so, and if you are deemed a non-essential business by government decree, it may trigger your ability to successfully argue force majeure, thereby relieving you of your contractual non-monetary obligations under the lease.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

So, if your lease contains a force majeure clause, read it carefully. In most commercial leases, those clauses expressly exclude a tenant’s obligation to pay rent. As a result of COVID-19, many commercial tenants that, by government emergency order, cannot operate and, therefore, generate revenue, are forced into a position of breach of their commercial leases.

Landlords would, if nothing were changed, be able to terminate the lease, replace the tenant and sue for unpaid rent under the lease, both past and future. A result that simply cannot arise in the CKL or elsewhere in Ontario.   

Force majeure clauses are also narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[6]   STEP SIX

Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control access to the building and permit a landlord to implement new health-related rules and regulations, which the tenant, its employees and invitees must follow. These clauses may also provide for how additional services for the building are to be paid. For example, increased sanitation and cleaning services may be undertaken. Additional support by property managers may be required to respond to COVID-19. The cost of these services may be passed on to tenants through additional rent or operating cost provisions in the lease. However, if not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element, too. If the health emergency exists, such as COVID-19, the landlord will not be in default if it fails to comply with its maintenance and repair obligations until health emergency ends.

In addition to business interruption insurance coverage, some insurance policies may also incorporate broadly-worded ‘loss of attraction’ or even ‘pollution’ clauses, particularly for industrial commercial tenancies, which potentially could trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[7]     STEP SEVENConsider applying for relief from forfeiture:

If rent is unpaid and the landlord either terminates the lease, per (d) above, or otherwise distrains or re-possesses the premises, the tenant may also apply to the Court to relieve it from the forfeiture under the lease [Courts of Justice Act, s. 98 (“CJA”)].

The Court is empowered to reinstate the tenancy, even though the lease may have been validly terminated by the landlord for non-payment of rent.

Specifically, the CTA, sub-section 20(1), reads:

Relief against re-entry or forfeiture

  1. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor’s action, if any, or if there is no such action pending, then in an action or application in the Ontario Court (General Division) brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just.”

 

In addition to this relief from forfeiture remedy, the Court “may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just” [CJA, s. 98].

The Court also has a general, inherent authority and ability to grant relief from forfeiture, beyond these statutory provisions. While it is entirely discretionary to the Court, which will review each case on a case-by-case, factual basis, the Court is likely to consider:

- the conduct of the tenant and the gravity of the breach;

- whether the purpose or object of the right of forfeiture in the lease was essentially to secure the payment of money; and

- the disparity or disproportion between the value of the property forfeited and the damages caused by the breach.

The Court is also likely to consider other circumstances, too, specific to the parties themselves and their specific lease agreement, such as their contractual history, the conduct of both parties and whether a party attempted to act reasonably or with good faith, or act otherwise. 

Prior to the onset of the pandemic, generally speaking, the Court would often grant relief from forfeiture to a commercial tenant, if the tenant could pay up the arrears and carry on paying the accruing rent. If money or some additional time were capable of resolving the problem and restoring the status quo arrangements, the Court is likely to favour that outcome. However, pre-COVID-19, the Court usually required the tenant in default to pay all arrears owing to be granted relief from forfeiture, conditionally. 

But now what? COVID-19 has imposed unique, novel and entirely uncertain circumstances upon landlords and tenants, entirely without blameworthy conduct. The law has not yet addressed relief from forfeiture when a business is deemed non-essential by government order and forced to close, or substantially reduce operations. Physical distancing and other containment measures also impact significantly the ability for both essential and non-essential businesses to operate and generate regular revenue to pay financial obligations ongoing, like commercial rent.

While it has yet to be tested judicially, presumably the law will need to evolve and adopt to COVID-19, including by granting relief from forfeiture without requiring the payment of all arrears or, at least, a structured program to do so reasonably affordable to the tenant and its specific circumstances.

On the other hand, the landlord, which may rely on commercial rent payments to pay its own mortgage for the building, must avail itself of the mortgage deferral options now available through the large financial institutions, which must co-ordinate with the non-payment of rent by the tenant. 

Due to COVID-19, if a commercial tenant, particularly a non-essential business, applies for relief from forfeiture, the Court will need to expand its review and consider additional circumstances, such as:

[1]    that the tenant may be required to close, or reduce operations, by government decree;

[2]    the bargaining power and economic status of each party, as relief should more likely be granted to small business owners occupying premises owned by larger, commercial property companies, in particular;

[3]    the ability of the landlord to seek deferral of underlying mortgage payments, or other obligations, if the landlord can demonstrate reliance on the tenant’s rent payments to pay those monthly obligations; and

[4]    a fair and sensible allocation between the specific parties for the losses mutually experienced due to the global pandemic, including allocating those losses reasonably and with a view to the public’s best interest to restore the economy and commerce as soon as possible.

[8]      STEP EIGHT - Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a commercial tenant is not necessarily without a remedy for an unforeseen event, such as COVID-19, that causes the tenant to be unable to perform its obligations under the lease.

The legal doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a fairly high threshold must be achieved for the doctrine will be invoked by an Ontario Court and, if so, it means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

Presumably COVID-19 would potentially qualify as the triggering event, but every case is likely to be considered on a case-by-case basis. 

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”), which under sub-section 2(1), affirms that it applies “to any contract that is governed by the law of Ontario and that has become impossible of performance or been otherwise frustrated and to the parties which for that reason have been discharged. The FCA also deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.

If a lease is terminated by the landlord and the tenant does not apply to the Court for relief from forfeiture, the landlord may also sue the tenant for back and future rent and any other damages arising from the defaulted tenancy.  

If so, the tenant should rely on the FCA, or the doctrine of frustration generally, to release both parties from their contractual obligations, respectively, including the obligation to pay rent.

While economic downtown historically has been held by the Ontario Courts not to give rise to a frustration of contract, times are now dramatically different. The Court must now re-evaluate the law in the face of COVID-19 and adopt to achieve fairness and reasonableness during the pandemic, to both parties. It would be inconceivable for a Court to conclude, for example, there can be no frustration when a small business is ordered to shut down by a provincial emergency order.

It is likely that a defence related to frustration will prevail for a tenant that is sued, but every case is likely to be reviewed on its own merits and a case-by-case basis. 

SUMMARY:

Therefore, if you are a commercial tenant who cannot pay your rent and: (a) your landlord will not act flexibly or responsibly; and (b) neither the federal nor provincial governments intervene, so that everything above still applies, you should take these steps:

[1]    request your landlord to apply for the new CECRA;

[2]    apply for the expanded CEBA;

[3]    request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments, in writing;

[4]    request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus, in writing;

[5]    if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;

[6]    review your lease carefully for:

(a) a force majeure clause;

(b) health emergency clauses;

(c) liability protection clauses;

and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;

[7]    speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above;

[8]   if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord; and

[9]   if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract.

You might also call your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic). 

 

 

 

 

 

 

 

 

 

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TESTING AND SCREENING EMPLOYEES FOR THE VIRUS TO PROTECT OTHERS - WHAT IS ALLOWED? WHAT ABOUT PRIVACY? WHAT CKL BUSINESSES AND EMPLOYEES NEED TO KNOW

While essential workplace employers have a statutory duty to take reasonable steps to protect the health and safety of employees, privacy laws still apply during the pandemic.

Privacy laws impact what employers are permitted to do in terms of screening and monitoring employees during the COVID-19 crisis.

Ontario’s Privacy Commissioner has not yet provided any guidance with respect to COVID-19 testing and screening by employers during the pandemic.

While the Privacy Commissioner has expressed that privacy laws continue to apply in these circumstances, it has also qualified that such laws are not meant to be applied as barriers during the course of public health emergencies.

In other words, privacy laws should not obfuscate employers taking reasonable precautions to ensure the health and safety of employees.

Can employees be asked if they have COVID-19 symptoms?

Employers should not employees if they have virus symptoms, if employees are not displaying symptoms.

Employers must have reasonable grounds to believe an employee is symptomatic and, if so, requesting information from the employee may be appropriate.

What is reasonable in the circumstances depends on the workplace – some workplaces inherently involved more risk, such as hospitals and long-term care facilities.

Employers should adopt an infectious disease or communicable illness policy requiring employees to proactively disclose if they have, or live with someone who has, COVID-19 symptoms.

Under the policy, an employee should be required to:

  • inform his or her employer of illness-related symptoms through a confidential process;
  • self-isolate at home;
  • follow the advice of the relevant public health agency on treatment and recovery; and
  • keep the employer updated regularly.

Can employees be required to provide a doctor's note?

Most physicians in Ontario are not able to test for COVID-19 currently. Testing has been an ongoing challenge throughout Ontario.

In addition, provincial and federal health directives discourage us from attending a physician’s office, meaning physical examination is unlikely and, therefore, the quality of any examination may be unsatisfactory.

While employers are generally entitled to request a physician’s certificate or note if an employee is absent from work, such as on sick leave, doing so due to COVID-19 is impracticable.

If an employee is a confirmed case, or has been symptomatic, a physician could potentially opine on whether the employee continues to be symptomatic, but not likely be able to verify whether the employee is infection free.

Accordingly, while the employer may be entitled to request a doctor’s statement, it is likely to have compromised value.

Can employees be required to be tested before going to work?

COVID-19 in testing in Ontario is not widely available – it must be directed by a healthcare authority. It cannot be obtained on request of any person. 

For most of us, obtaining a test absent a directive to do so is unlikely.

Therefore, employers are not entitled to require testing before employees attend their work generally.

There may be exceptions to this for higher-risk workplaces, such as hospitals and long-term care facilities.

Similarly, if the employer has reasonable grounds to believe infection is present, such as symptoms being displayed, employees may be rightfully requested to leave their workplace and contact the local health unit, or other health authority, to determine if assessment and testing should be undertaken.

Can employees’ temperatures be taken before allowing them to attend work? Is thermal testing allowed?

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Touchless temperature scanners are available to employers to use, but can they?

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

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IMPORTANT CHANGES TO THE CERB - MORE NOW QUALIFY - YOU CAN MAKE UP TO $1,000 WHILE GETTING THE BENEFIT - YOU CAN RECALL FOR SHORT PERIODS WITHOUT DISQUALIFYING YOUR EMPLOYEES - WAGE TOP-UPS FOR ESSENTIAL WORKERS. WHAT YOU NEED TO KNOW.

The Canada Emergency Response Benefit (the "CERB") has been expanded, now offering more financial/wage support to low-income, essential workers.

The CERB eligibility rules have been changed to:

  • allow people to earn up to $1,000 per month, while collecting the CERB;
  • extend the CERB to seasonal workers who have exhausted their EI regular benefits and are unable to undertake their usual seasonal work as a result of the COVID-19 outbreak; and
  • extend the CERB to workers who recently exhausted their EI regular benefits and are unable to find a job or return to work because of COVID-19.

These changes will be retroactive to March 15, 2020.

So, employers that need to recall employees for short periods of time now may do so, without risking the employees' entitlement to the CERB. 

In addition, if an essential worker makes a salary that is less than, or similar to, what he or she would receive from the CERB, the government will work with Ontario through a new transfer to cost-share a temporary top-up for the salaries of workers deemed essential in the fight against COVID-19 and who make less than $2,500 a month.

More details as to the application and delivery of this measure will be released shortly.  

What employees will be deemed essential for this wage top-up has yet to be confirmed.  It appears it will be workers who are "front-line in hospitals and nursing homes, those ensuring the integrity of the food supply, or providing essential retail services to Canadians."

 

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CKL SMALL BUSINESSES - BETTER ACCESS TO THE $40,000 INTEREST-FREE LINE OF CREDIT - HELP WITH PAYING YOUR COMMERCIAL RENT IS ON THE WAY. WHAT YOU NEED TO KNOW.

Today the federal Government announced:

[1]      CEBA:

Eligibility for this interest-free line of credit (loan) has been expanded.

The previously announced program, which offers businesses up to $40,000 in a government-backed loan, will now be available to businesses with payrolls worth between $20,000 and $1.5 million.

Previously, the interest-free loan was only for those with payrolls worth between $50,000 and one million.

Up to $10,000 of the loan is non-repayable.

The government also indicated that 195,000 loans amounting to about $7.5 billion have been approved since the loan program opened for applications a week ago.

Expanding the access to the program will obviously help more small businesses access the funds, but new businesses, the self-employed and businesses that pay with dividends still will not qualify.

[2]      COMMERCIAL RENT ASSISTANCE:

For small businesses (owner/operators), financial assistance will be made available to pay commercial rents for April, May and June.

The plan is not yet formalized, but will worked out with the Ontario premier, because rent issues fall under provincial jurisdiction.

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MY 13-WEEK TEMPORARY LAY OFF ENDS SOON - NOW WHAT? GUIDE TO CKL BUSINESSES AND EMPLOYEES

Some CLK businesses have been deemed non-essential and, therefore, cannot operate during the emergency.

Other essential businesses, despite being legally permitted to operate, have had to consider or undertake downsizing, restructuring, or otherwise cost-cutting.

Either way, as a result, local businesses have had to consider or have implemented temporary or permanent layoffs.

While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts.

The Ontario Employment Standards Act, 2000 (the “ESA”) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period.

However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in any consecutive 52-week period, the layoff will still be considered temporary in a few exceptional cases (i.e., if the employer has continued to pay the employees substantially and/or provides them with benefits, if the employees would be entitled to receive Employment Insurance or the CERB, or if the employees are subject to a timely recall).

The 20-week period is a “rolling window” - if an employee is laid off for even one day more than 13 weeks in any consecutive 20-week period, the layoff will not be temporary. The same is true of the 52-week window described above, which applies in limited circumstances. If the applicable threshold is exceeded, termination is triggered, and is deemed to have retroactively occurred on the first day of the layoff.

In addition, a temporary lay off may be extended for any period, if the employee consents. If so, an employer is allowed to continue the lay off to coincide with the length of the pandemic. 

Despite an employer’s right to temporarily lay off an employee under the ESA, where an employment contract does not provide for the possibility of such a layoff, Ontario courts have often favoured employees who claim to have been constructively dismissed.

Accordingly, employers face risk if they lay off an employee for common law damages, even where they have complied with the temporary layoff provisions of the ESA.

However, there are cases in Ontario in which the Court has inferred a right to impose a temporary layoff in the absence of an express contractual right in limited circumstances.

For example:

  • the employer has a history of temporary layoffs for various reasons, including a shortage of work;
  • the employer is in an industry where temporary layoffs or breaks in service are common;
  • the employer has a policy in place to warn employees that temporary layoffs are possible when there is a downturn in business or a shortage of work; and/or
  • the employer continues to provide benefits to laid off employees during the layoff term

Despite this, employment contracts should incorporate a standard lay off clause protecting the employer’s right to temporarily lay off employees in accordance with the ESA and without further notice or compensation.

 

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BECAUSE OF AND DURING COVID-19, CAN EMPLOYERS LAY OFF OR FIRE EMPLOYEES WITHOUT HAVING TO PAY THE USUAL SEVERANCE? WHAT YOU NEED TO KNOW.

Many employers in the City of Kawartha Lakes, particularly those designated as “non-essential” have been forced to scale-down or cease operating, including by provincial emergency order. Even “essential” workplaces have been forced to lay off, place on infectious disease leave or terminate employees due to the pandemic. Uncertainty abounds for everyone, in terms of the legal rights of both employers and employees.   

The virus does not discriminate – it affects all marketplaces, both bricks-and-mortar businesses and those operating by e-commerce. 

For more information from us about whether to lay off, terminate or place an employee on a temporary leave of absence, go here: http://wardlegal.ca/31585663827849.

However, during this unprecedented uncertainty, the key question is whether employers are able to terminate an employee, including by failing to recall them after a temporary lay off, without paying the employee statutory minimum entitlements under Ontario’s Employment Standards Act, 2000 (the “ESA”), due to the so-called “frustration” of the employment agreement (i.e., due to the pandemic).

If an employment contract is “frustrated” (a legal concept), an employer is not required to give, or pay, notice of termination or pay in lieu of notice.

The ESA excuses an employer from giving, or paying, statutory termination pay for any employee, “whose contract has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance,” unless the “impossibility or frustration is the result of an illness or injury suffered by the employee”.

In addition, the ESA relieves an employer from paying statutory severance pay for any employee, “whose contract of employment has become impossible to perform or has been frustrated”, unless the impossibility or frustration is the result of: (a) a permanent discontinuance of all or part of the employer’s business because of a fortuitous or unforeseen event; (b) the employer’s death; (c) the employer’s death, if the employee received a notice of termination before his or her death; or (d) an illness or injury suffered by the employee. 

Historically, the Courts have interpreted these as catastrophic events causing an employer to shut down, or substantially scale down operations, such as fires, floods, natural disasters or so-called “Acts of God”.

It remains unclear in Ontario, however, whether businesses closing, or reducing employees due to scaled-down operations, due to the pandemic will be viewed by Courts and the Ontario Government as being caused by a “fortuitous or unforeseeable event or circumstance” making the employee’s job impossible to perform.

Beyond the ESA, generally if an employment contract does not contain a force majeure clause, or the clause is of no assistance because of its terms, an employer may, in very limited circumstances, also be able to argue that it is relieved from its contractual obligations by claiming the contract is “frustrated” at common law.

Legally, 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. 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.

The threshold required for frustration at common law 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, our Courts have not accepted economic disruption or falling markets to constitute an event that would frustrate a contract. Courts have generally held that changes to the circumstances must amount to an unforeseen event capable of triggering frustration at common law and that, even if there were, it would be incumbent on the employer to adduce real evidence in support thereof. Courts have also recognized that a business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. However, generally speaking, these events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen". A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or group termination under the ESA or at common law, presumably. 

Arguably, employers may take the position that their employment agreements have been frustrated because COVID-19 rendered it impossible to perform due to:

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

• a fortuitous or unforeseeable event or circumstance;              

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

• the actions of any government authority that directly affects the operations of the employer, like being designated as “non-essential” (but being permitted to operate by e-commerce, remotely, etc.).

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

Logically, if the closure of a business, or reduction in work force, is directly related to COVID-19 and there is no other manner in which the employee could perform work in a different way, such as remotely, these exceptions may apply to exclude employees from receiving both statutory and common law-based compensation for length of service and group termination pay.

However, this may not always be the case.

If an employer terminates an employee for reasons that are not directly related to COVID-19, or if the employee’s work could still be done (albeit in a different way), these exemptions would not seemingly apply.

Each situation is very likely to be determined on a case-by-case basis. 

A business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. These events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen" generally. A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or mass termination under the ESA. Similarly, business failure for reasons of cancellation of orders, insolvency, Therefore, the employer would not be relieved of the obligation to pay at least statutory termination and severance pay.

Temporary illness, injury or disability is not considered to be an unforeseeable event or circumstance that would discharge an employer’s obligations under the ESA, either. However, if medical evidence shows that an employee is permanently disabled as a result of COVID-19 and will never be able to return to the workplace, there may be frustration at common law, relieving the employer of paying beyond the statutory minimums. Employers must be mindful of their duty to accommodate under Ontario’s Human Rights Code, too.

Therefore, the key points:

  • each situation is likely to be judicially addressed on a case-by-case basis;  
  • it remains the responsibility of both the employee and employer to work together and be flexible to find ways for the employee to perform work in a different way, even if modified, such as working from home, which many employees are now doing;
  • the ESA sections referred to above relates only to statutory termination and severance pay, not any applicable common-law entitlement; and
  • the test is basically “impossible” to perform – a high threshold for employers to meet.

To terminate any employee, or fail to recall any employee after a temporary lay off, an employer would effectively have to prove that it was impossible to continue employing the employee, in any way or capacity, causing the parties’ relationship to be frustrated. 

Employers will need to prove, in each case, that the employee’s employ was impossible to maintain, or frustrated by, COVID-19 (which must be proved as a fortuitous and unforeseen event effecting each, specific employee), failing which the employee will be entitled to both statutory and common law notice entitlements.

 

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MORE HELP TO CKL EMPLOYERS ENROLLED IN WORKPLACE SAFETY AND INSURANCE - A FULL RELIEF PACKAGE FROM THE WSIB - WHAT YOU NEED TO KNOW.

To offer more assistance to CKL employers who are enrolled, the Workplace Safety and Insurance Board (“WSIB”) has now announced a "relief package", permitting employers to defer premium reporting and payments until August 31, 2020.

The WSIB has also announced that the costs for COVID-19 claims will be allocated on a Schedule-wide basis and, therefore, will not result in premium increases for 2020.

Schedule 1 employers are eligible to defer their reporting and payments until August 31, 2020. This applies to monthly payments due March 31, April 30, May 31, June 30, and July 31, 2020, to quarterly payments due April 30 and July 31, 2020, and to annual payments due April 30, 2020.

Schedule 2 employers—–including certain publicly funded organizations and certain businesses involved in federally regulated industries—are also eligible to defer reporting and payment obligations.

No interest will accrue and no penalties will be charged during the deferral period.

Notably, eligible employers are not required to opt-in to the deferral - it is automatic. For those employers electing not to participate, reports may still be submitted online and payments may can be made online or via mail.

The WSIB has also announced that there will be no change in premium rates for 2020, aimed at facilitating employees' ability to comply with public health orders, such as self-isolation or quarantine orders. This will not, however, change employers’ obligations under Ontario's Occupational Health and Safety Act.

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CKL RESIDENTS - MORE FINANCIAL HELP - CERB EXPANDED TODAY - SEASONAL;PART-TIME; REDUCED HOURS; STUDENTS - PLUS A WAGE HIKE TO ESSENTIAL WORKERS - MORE HELP ON THE WAY TO POST-SECONDARY STUDENTS AND CKL BUSINESSES THAT CANNOT PAY COMMERCIAL RENT

Today the federal Government announced more flexible rules for claiming the Canada emergency response benefit (the “CERB”), which previously excluded, for example, students and employees or self-employed people working reduced hours.

They also announced a wage boost for essential workers who make less than $2,500 a month, including those working in long-term care facilities for the elderly.

This applies to “a volunteer firefighter, or a contractor who can pick up some shifts, or you've got a part-time job in a grocery store”.

"We will do whatever we can to help you do your job and support you through this time."

Seasonal workers and those who have recently run out of employment insurance will now also be eligible for CERB.

People who make less than $1,000 a month due to reduced work hours will also qualify.

The CERB now has expanded eligibility criteria, and they will announce more relief soon about additional help for post-secondary students and businesses having trouble paying commercial rent.

The CERB is now focussing on the needs of seasonal workers, people who have exhausted EI benefits, students, owner-operators and those who continue to receive a modest income from part-time work, royalties and honorariums.

The changes are back-dated to March 15. 

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CKL RESIDENTS - URGENT/EMERGENCY FINANCIAL HELP AVAILABLE TO YOU - UP TO $730 MONTHLY; MORE WITH CHILDREN - HOW TO QUALIFY - APPLY ONLINE - WHAT YOU NEED TO KNOW

If you need urgent financial help and you live in the City of Kawartha Lakes, you could be eligible for approximately $733 for a month if you are a single person and need help paying for food and shelter.
More if you have children.
Up to 48 days of support is available depending on your specific situation
You may qualify if you are in a crisis or emergency situation, and do not have enough money for things like food and housing.
For example, a crisis or emergency includes situations where you:
- have been affected by COVID-19
- are being evicted from your home
- are in or are leaving an abusive relationship
- are worried about your safety
You are not eligible if you are getting assistance from Ontario Works or the Ontario Disability Support Program.
Apply for this help online here:
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FEDS SAID TODAY TO GO OUTSIDE ONLY IF "ABSOLUTELY ESSENTIAL" - IF SO, YOUR UPDATED PROTOCOL FOR GOING TO ANY ESSENTIAL STORE, INCLUDING YOUR NON-MEDICAL MASK

Today the federal government announced we should only leave home if it is "absolutely essential". If you cannot use a click-and-collect service to buy your essential goods, here is an updated protocol to follow when you go to an essential store, like groceries and pharmaceuticals: 

  1. follow the containment measures implemented by the essential service, including the waiting outside to enter, one-way arrows, standing on the taped distance lines, etc.;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. wear your non-medical (cloth) mask, primarily to protect others from you, if you may be asymptomatic;  
  5. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  6. do not attend with your own bags or containers;
  7. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  8. adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  9. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  10. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  11. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  12. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  13. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

 

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COVID-19: HIRE YOUTH IN THE CKL (15 TO 30), INCLUDING STUDENTS - 100% WAGE SUBSIDY NOW AVAILABLE - WHAT BUSINESSES AND NON-PROFITS NEED TO KNOW

To facilitate the employ of our youth in the City of Kawartha Lakes, those between 15 and 30, including students and summer students, the federal government has changed, temporarily at least, its Canada Summer Jobs program. 

Enhanced wage subsidies are now available for these potential employers:

  • not-for-profit organizations;
  • the public sector; and
  • private sector organizations with 50 or fewer full-time employees across Canada.

What You Need to Know:

  • wage subsidy for private and public sector employers has been increased - they are eligible to receive up to 100% of the minimum hourly wage for each employee (previously this was only available to not-for-profit employers);
  • the end date of employment has been extended from August 28, 2020 to February 28, 2021 to address delays to the start date of summer jobs caused by the pandemic;
  • employers have more flexibility to adapt their projects and job activities to support essential services;  
  • employers may hire on a part-time basis (less than 30 hours per week) (previously employers were required to provide full-time positions, between 30 to 40 hours per week);
  • other eligibility requirements remain unchanged, including the necessary time of employee, being between 6 and 16 weeks; and
  • placements can begin as of May 11, 2020.  

Although the call for Canada Summer Jobs applications for the 2020 season ended on February 28, 2020, the federal government has announced it is attempting to identify organizations providing essential services that could offer youth jobs, but did not previously apply for the program. 

The federal government also indicates that it will co-operatively work with employers to ensure that work options reflect public health requirements and advice related to COVID-19.

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I'M LAID OFF - DO I HAVE TO BE RECALLED? SHOULD I SUE MY EMPLOYER FOR WRONGFUL TERMINATION? CAN MY EMPLOYER DO THIS? EMPLOYERS AND EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW ABOUT LAY OFFS DURING THE PANDEMIC

Due the shutdown of non-essential workplaces, effective March 24, 2020, many employers have laid off, or will continue to consider temporarily laying off employees, particularly if those employers do not qualify as “essential workplaces”.

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

JUDGE-MADE LAW IN ONTARIO – LAY OFF CAN BE A TERMINATION OF EMPLOY:

Generally, at least before the pandemic, Ontario employers had no free-standing right, statutorily or otherwise, to lay off employees.

Rather, an employee may be laid off only if such a right is:

  1. expressly or impliedly contemplated by the contract of employment; or
  2. expressly agreed to by the employee.

Employers who lay off employees contrary their employment contracts are liable to provide those employees with reasonable notice or pay in lieu, resulting in potentially costly litigation and severance obligations.

Similarly, employees who decline to consent to a layoff must be treated, and provided with notice, as though terminated without cause.

The refusal of an employee to accept the proposed layoff is not a sufficient basis to allege cause for termination.

Whether the or not right to lay off an employee is contemplated by an employment contract, and whether or not a temporary lay off is appropriate for your business, requires both legal and factual analysis.

However, given the emergency declarations by both the federal and provincial governments, including the ordered closure of non-essential businesses in Ontario, this existing law is now entirely uncertain.

These issues have yet to be addressed and resolved by our Ontario Courts, most of which are operating on skeletal resources currently.

Accordingly, the pandemic is very likely to force changes, at least temporarily, to the law regarding lay offs in Ontario, mostly because there cannot be a flood of wrongful termination claims inundating a system that will already be challenged by lack of resources and judicial catch-up.

STATUTORY LAY OFFS IN ONTARIO:

Despite the above, 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.

SO WHAT NOW?

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 IN THE CKL - AN UPDATE ON PENALTIES FOR FAILING TO COMPLY WITH CONTAINMENT MEASURES - NEW FINES, ETC.

An update on enforcement measures available in the City of Kawartha Lakes to require COVID-19 containment: 

FEDERAL GOVERNMENT:

  • for failure to quarantine for 14 days after returning to Canada, a fine of up to $750,000 and imprisonment up to six months;   
  • for causing risk of imminent death or serious bodily harm to another, while defying the federal Quarantine Act, a fine of up to 1 million dollars and jail for up to three years, or both; and
  • federal Criminal Code remains available, including bodily harm provisions.  

ONTARIO EMERGENCY ORDERS:

Any person who fails to comply with a provincial emergency order (i.e., gatherings of more than five, non-essential businesses cannot be open to public, etc.) may face:

  • for an individual, a fine of up to $100,000 and imprisonment up to one year
  • for an individual who is a director/officer of a company, a fine of up to $500,000 and imprisonment up to one year; and
  • for a company, a fine of up to ten million dollars.

For a list of all emergency orders by Ontario to date, go here: https://www.ontario.ca/page/emergency-information

THE MUNICIPALITY (CKL):

  • unlike other municipalities, the CKL has not enacted a by-law prohibiting contact with others (non-household members) within the 2 metre distance;  
  • has prohibited the use of amenities on municipal property and required pass-through use only;  
  • has not made any state of emergency orders regarding enforcement of containment measures or conduct of business;
  • CKL has not directed cottagers and seasonal residence owners to stay home and refrain from travelling to the CKL; and   
  • OPP and KL Police Service may enforce federal and provincial emergency orders (no gathering of five or more, etc.) and the federal Criminal Code   

HKPRD HEALTH UNIT:

  • Class Section 22” issued, effective Apr. 14, 2020 at 12 p.m. (per Ontario’s Health Protection and Promotion Act)
  • self-isolation for a minimum 14 days is mandatory for any person in the CKL who:
  1. has been diagnosed;
  2. is considered a probable case; and/or
  3. has had contact with a confirmed case
  • self-isolation requires not leaving your home for any reason, including to obtain essential goods or services; no visitors except as approved by the Health Unit; and
  • Health Unit cannot issue fines directly, but can request the Ontario Court of Justice to issue a fine of up to $5,000 per day.  

Note: Physical distancing and wearing a mask in public are not legally required at any level of government.  

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HEALTH AND SAFETY OF EMPLOYEES WORKING AT HOME - TIPS TO EMPLOYERS IN THE CKL TO AVOID LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC

What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be considered. 

ONTARIO HEATH AND SAFETY LEGISLATION DOES NOT APPLY TO WORKING AT HOME:

The health and safety of employees is largely governed by Ontario’s Occupational Health and Safety Act (the “Act”).

However, for employees working at home, or remotely, as it stands, the Act does not apply to those circumstances. 

Sub-section 3(1) the Act provides that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”

Employers cannot reasonably be expected to attend an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their employees in their own home environments, over which the employer has no control. 

However, there may still be risks in an employee’s home, which ordinarily would be covered by the Act – both employees and employers should discuss potential safety issues for the working-at-home arrangements, even if employers are not statutorily required to do so. 

Despite this, due to the pandemic, it is entirely unclear if this legal position will be applied in future.

WORKPLACE VIOLENCE AND HARASSMENT:

The Act addresses directly workplace violence and harassment, including requiring employers to mandatorily have an adequate workplace policy.

These protections should still apply to employees working at home, sensibly.  

Employees may still be expected to interact with co-workers, customers and clients, for example, including virtually. While there may be less risk of physical contact while remote working takes place, there remains the risk of other forms of violence or harassment, which is prohibited in the workplace by the Act. There need not be a physical office interaction for violence or harassment to be experienced.  

Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way. 

Effectively, there is simply a lack of caselaw decisions on this point and no clear direction on whether the Act will apply to working at home, or not, particularly during this pandemic and the unprecedented circumstances it brings.

TIPS TO EMPLOYERS TO MINIMIZE THE RISK OF LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC:

Therefore, employers are well-advised to carefully consider these issues during the pandemic, or at any other time, particularly for work-at-home arrangements with remote employees:

[1]      Health and Safety:

  • the employer’s obligations under the Act in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; and
  • the potential that the workplace could be considered to include an employee’s home must be considered, including the employee’s workstation set up and ergonomics.

[2]     Mental Health, Psychological and Sexual and Other Violence and Harassment:

  • employers must strive to promote and preserve civility and courteous conduct, especially while using new methods of communication, like virtual teleconferencing, etc.;
  • employers should provide etiquette guidelines for virtual communication between co-workers and customers;
  • employers must discourage misconduct or failure to engage in proper teamwork – new technology does not alter this important objective;
  • employers have a legal responsibility to prevent and address psychological, sexual and other harassment situations;
  • employers may be responsible for events that occur outside the usual workplace, but relate to work;
  • employers should adopt a formal working-at-home policy, clearly setting out the expectations; and
  • employers should review their complaint and inquiry procedures, to ensure they may be adequately processed outside of the workplace, too. 

[3]      Employment Standards Act, 2000:

Employers must also be mindful of their statutory obligations and minimum labour standards, which apply to those working at home, too, including:

  • modifying work schedules;
  • managing overtime; and
  • addressing costs associated with working from home.

[4]      Privacy and Confidentiality:

It is critical for employers to consider and manage effectively the privacy and confidentiality of work-related information, including:

  • to accommodate properly the contractual performance of work in the employee's home;
  • for transporting and storing work documents; and
  • establishing work spaces at home to ensure that information/documents are kept confidential and ethical obligations are respected and adhered to strictly.

Caselaw References:

Decision No 2249/16, 2016 ONWSIAT 2410

Watkins v. The Health and Safety Association for Government Services, 2013 CanLII (ON LRB)

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COVID-19 - SPOUSES - IF YOU SEPARATE RECENTLY BEFORE OR DURING THE PANDEMIC, BE CAREFUL! YOU MAY NOT HAVE TO PAY AS MUCH TO SETTLE PROPERTY - WHAT YOU NEED TO KNOW

When two married spouses separate, among other issues they must resolve, they must “equalize” their “net family property”, respectively.

Basically, the spouse whose net worth increased more between the date of marriage and the date of separation must pay to the other spouse one-half of the difference in that increase over the other spouse, subject to a few rules and exceptions that often cause disputes in and of themselves.

If Sharon’s net worth increased by $10 during the marriage, but Mike’s, her married spouse’s, net worth only increased by $5, Sharon would legally be required to pay to Mike $2.50, thereby equalizing their net family properties.

Of course, it is more complicated than this, as special rules and exemptions also apply, but this is the basic family law requirement, unlike in most of the United States, where a married spouse is entitled to half of the combined assets and liabilities, generally.

COVID-19 now casts an uncertain shadow over this family law rule.

Assets have already substantially lost value during the pandemic, particularly investment holdings and likely the value of matrimonial homes, farms, etc.

The key dates are the date of marriage and the date of separation (referred to as the “valuation day”).

So, if the date of separation was early on during, or even before, the pandemic affected Ontario, there is substantial risk involved with utilizing the date of separation fair market value for assets to compute the equalization of net family properties.

It may create unfairness to the higher net worth spouse, forced to solely burden the economic impact of the virus, particularly if a settlement or trial does not take place for several months after the pandemic struck us.

If an asset is jointly-owned, the issue is less likely to arise, as both spouses typically, subject to a few exemptions, bear the prevailing market conditions post-separation. 

Furthermore, there is so much uncertainty about the future of the economy and market forces, the risk may actually be increasing as time passes during the pandemic.

A higher net worth spouse in these circumstances does, at law, have a remedy to assert to try to gain some relief.

Under the legislation for Ontario, the Court is empowered, subject to strict conditions, to reduce or vary an equalization payment by the higher net worth spouse to the other.

This is commonly referred to as an “unequal division” of net family properties. 

The relevant section of Ontario’s Family Law Act reads:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

The test to be given an unequal division by the Family Court is high and onerous. 

Essentially, applying the regular and usual family law must, in the special circumstances, be shocking and unconscionable to the Court.

The question is: does COVID-19 fall into that high threshold potentially?

Certainly the 2008 recession was considered by the Court to justify deviating from the otherwise normally-applied family law for equalization of net family property.

It seems, then, that COVID-19 would also be proper grounds to request an unequal division, in the right circumstances. 

Indeed, a spouse’s net worth may be substantially impacted by the pandemic between the date of separation and the time when the Court holds a trial, or there is a settlement reached.

What to do?

If a spouse has experienced a material decline in his or her net worth since the onset of the pandemic, before or after a separation date, careful consideration needs to be given to possibly seeking an adjustment to how the law would otherwise, normally be applied by the Court.

It may be that, due to the virus, there are justifiable reasons to assert that the high test has been met to warrant a lesser property settlement payment than would otherwise be required.

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COVID-19: YOUR UPDATED CHEAT SHEET FOR THE 75% AND 10% WAGE SUBSIDIES TO KEEP OR HIRE BACK EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW

Update to the CKL – the Canada Emergency Wage Subsidy, per Bill C-14, the COVID-19 Emergency Response Act, No. 2, passed April 11, 2020:

NEW SOURCE DEDUCTION/REMITTANCE REFUND:

  • a new 100% refund for certain employer-paid contributions to Employment Insurance and the Canada Pension Plan, covering 100% of employer-paid contributions for eligible employees for each week in which the eligible employer receives the 75% CEWS - employers are required to continue to collect and remit employer and employee contributions to each program, as usual; and
  • employers may apply for the new refund at the same time that they apply for the 75% CEWS.

NOT-FOR-PROFITS AND CHARITIES:

  • not-for-profits may include membership fees; and
  • not-for-profits and charities may include or exclude (by election) revenue from government funding – whatever decision is made will continue to apply for the entire 75% CEWS period.  

CALCULATION OF “ELIGIBLE REMUNERATION” AND THE SUBSIDY:

  • subsidy is 75% of the amount of “eligible remuneration” paid to an employee;
  • a maximum benefit of $847 per week per employee;  
  • applies to individual employee salaries up to $58,700 annually;
  • no cap on the total subsidy an employer may claim;  
  • subsidy is taxable to the employer at year end (as “government assistance”);   
  • “eligible remuneration” includes salary, wages and other remuneration, like taxable benefits paid to an eligible employee, but does not include severance pay or stock options benefits, etc.; and  
  • no guidance on whether commissions, bonuses and pay incentive plans may be included.  

GENERAL:

  • system expected to be operational in May, 2020;
  • employers now able to apply for the CEWS through the Canada Revenue Agency's My Business Account portal here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-businesses/business-account.html;
  • reportedly the funding will flow within two to five weeks;  
  • more details about the application process are forthcoming;
  • what you select for your comparative calculation will apply for the full CEWS period (i.e., current month or the same month in 2019 OR the average in Jan. and Feb. 2020);
  • if you apply and are later held to be ineligible for the 75% CEWS, you will be required to repay the subsidy, plus an additional 25% penalty - penalties for fraudulent claims are severe and may also include additional fines and possible imprisonment; and
  • Note: to calculate your revenues for the 75% CEWS, you may use either the ‘cash accounting’ method (i.e., when payments are actually received by you) or the “accrual accounting” method (i.e., when you issue an invoice), which may offer more flexibility for your qualification application – whatever you elect, you must continue with that approach for the duration of the program.
  •  
  • APPLICATION FOR THE 75% CEWS:
  • entitlement to the subsidy will be based entirely on the salary or wages actually paid to employees - employers will need to pay the salary or wages to their employees, and, if eligible, will be repaid for those salaries or wages by the government through this subsidy program;
  • eligible employers will be able to access the subsidy by applying through the Canada Revenue Agency (CRA) My Business Account portal as well as a web-based application expected to be available in the next three to six weeks;
  • employers will need to keep records demonstrating their reduction in arm's-length revenues and remuneration paid to employees;
  • the government has indicated that funds will be available in approximately three to six weeks - for those employers not currently signed up for direct deposit, it will be beneficial to sign up for quicker access to funds through this program;
  • all employers will be expected to make best efforts to top up salaries to pre-crisis levels;
  • the government will consider implementing an approach to limit duplication between the two programs (CEWS and the CERB) in order to encourage all eligible employers to quickly rehire employees - according to the government, this could include a process to allow individuals rehired by their employer during the same eligibility period to cancel their CERB claim and repay the CERB payment for the relevant period;
  • if you have claimed the 10% Temporary Wage Subsidy before claiming the 75% CEWS, you will be required to reduce the latter claim by the amount previously received; and
  • municipalities do not qualify.  

THE 10% TEMPORARY WAGE SUBSIDY:

The 10% Temporary Wage Subsidy remains (“TWS”) available to employers:

  • employers who do not qualify for the CEWS may still qualify for the TWS;
  • no revenue threshold;  
  • maximum cap available to businesses; and  
  • application for the subsidy is not required (unlike the 75% CEWS).
  • the subsidy is equal to 10% of remuneration paid during the eligible period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer in total (i.e., all employees, full period of eligibility);
  • the eligible period is March 18, 2020 to June 19, 2020, inclusive;
  • eligible employers may reduce the amount of payroll deductions required to be remitted to the CRA;  
  • can be accessed as soon as April 15, for quarterly and regular (monthly) payroll remitters;
  • eligible businesses must have had an existing business number and payroll account with the CRA on March 18, 2020 – a new corporation cannot be established, nor can an existing corporation apply for a payroll account after March 18, 2020 to take advantage of this subsidy;
  • example: the March subsidy can be calculated for your payroll remittances due on April 15 or, alternatively, you can defer your claim to a lump sum amount later on or year end for the specific eligibility period only – if so, the Canadian Revenue Agency will pay that amount to you or, alternatively, transfer it to you as a source deduction/remittance credit; and
  • municipalities do not qualify.

More information about the CEWS is here: https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html

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COVID-19 - ESSENTIAL WORKERS (AND OTHERS) ARE FEELING STRESSED AND ANXIOUS - STILL, WEED AT WORK IS NOT PERMITTED, UNLESS MEDICALLY JUSTIFIED - WHAT YOU NEED TO KNOW

Many are stressed and anxious during the pandemic. 

Still, the law on cannabis at work remains unchanged. 

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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COVID-19 - DO FULL CHILD AND SPOUSAL SUPPORT PAYMENTS CONTINUE? EVEN FOR NON-ESSENTIAL WORKERS? WHAT YOU NEED TO KNOW.

If your workplace has been ordered by emergency order to be shut down, or you have otherwise been unable to continue to work due to COVID-19, consideration should be given to ongoing child and spousal support obligations.

If a support payor is collecting the new CERB, the Family Responsibility Office cannot garnish that benefit, being $2,000 monthly taxable for currently a three-month period, to pay either child or spousal support.

In Ontario, loss of employ or income reduction involuntarily may invoke the ability for the support payor to request reduced support payments, depending on the circumstances.

Undoubtedly COVID-19 and the fallout, including the emergency orders, would qualify as a reasonably unforeseen event capable of triggering a review of the existing support arrangements.

Indeed, and despite that ostensibly we remain in the early days of the pandemic, the 2008 recession was accepted by the Ontario Courts as such an event, so it stands to reason the coronavirus would fall into the same category.

At law, an existing child support obligation may be varied in the event of a, “change of circumstances” since the child support order was made.

Likewise, a spousal support order may be changed in the event a, “change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.”

While the law has yet to tackle COVID-19 in this context, it seems relatively straightforward that the pandemic would, at least on a prima facie basis, adequately support a request to vary a child or spousal support payment.

What should you do, as either the payor or recipient of either child or spousal support?

Firstly, review your Court order or your separation agreement.

Check for any clause in the document, usually in the support-related part of the document, that refers to a “material change in circumstances”, or language comparable.

If that clause exists, it may give the support payor legal ability to request a variation of the existing support payments.

Be watchful, in your Order or agreement, for any other clause that may require the existing support arrangements to continue unless they are varied by an order of the Court, or an arbitrator.

If that clause exists, it is likely the case that the support payor may be required to continue payment temporarily, while seeking to vary the existing arrangements.

In any event, the Family Court is largely only operating with skeletal resources and is mostly only entertaining emergency or urgent matters generally. While the Family Court is gradually expanding its services during the pandemic, it remains strained.

As a result, the Family Court is very unlikely to be receptive to a slew of urgent motions regarding the payment of existing child and/or spousal support, unless it qualifies for urgency and the test applied by the Court.

Accordingly, it is very important for both the support payor and the recipient to review their existing Order, or agreement, to know the framework they agreed to initially and what, if any, clauses may apply in the circumstances.

It is usually always better for two former partners to agree on a resolution, at least temporarily, rather than escalating the matter to the Family Court, which is, of course, very expensive and, at least for now, delayed in its process. 

If a support payor is a non-essential worker, or otherwise not working due to the virus, he or she should take reasonable steps to try to replace that income, including by applying for federal government-related benefits, such as the CERB or, if available, the Ontario government’s Emergency Assistance program, which is administered by most municipalities. Any steps taken should be recorded fully, as they may need to be used as evidence in future.   

 

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NEW ONTARIO EMERGENCY ORDERS NOW IN EFFECT IN THE CKL - A QUICK SUMMARY

The Ontario government has announced new emergency orders impacting the City of Kawartha Lakes:

April 9 – Construction - regulation amended regarding the closure of non-essential workplaces to permit the operation of certain construction workplaces for projects which are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products;

April 10 – Child Care - temporary order issued preventing child care centres from collecting payments from parents while care is not being provided, and protecting parents' child care spaces – the announcement reminded child care providers that they can seek government financial support to assist their business;

April 11 – Emergency Declaration - extended all previously issued emergency orders under the Emergency Management and Civil Protection Act - those orders have been extended to April 23, 2020 and include the orders respecting the closure of non-essential workplaces;

Additional Orders - The government has also announced new and additional orders by press releases:

  • regarding temporary health or residential facilities, which the government announcement indicates will "[make] it easier to repurpose existing buildings and put up temporary structures, like tents, so communities can meet their local needs quickly. This will reduce pressure on health care facilities, where needed, and help shelters provide more space for sleeping to maintain the physical distancing requirements to reduce the spread of the virus";
  • allowing hospitals and retirement homes to enter into agreements which will "[temporarily enable] hospitals to increase their capacity by using the beds and services of retirement homes without certain labour relations implications during the declared provincial emergency"; and
  • effective April 16, 2020, to "[support] construction workers and businesses with emergency action to help improve cash flow in the construction industry during the COVID-19 outbreak. This will lift the suspension of limitation periods and procedural time periods under the Construction Act and allow the release of holdback payments to contractors and subcontractors."

On April 12, 2020, the government also announced that it is, together with the Ontario Privacy Commissioner, developing a new health data platform called the Pandemic Threat Response (PANTHR).  According to the government press release, PANTHR will "hold secure health data that will allow researchers to better support health system planning and responsiveness."

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COVID-19 - BUSINESS FORCED TO CLOSE? CANNOT OPERATE? CAN'T PAY RENT? WHAT CAN THE LANDLORD DO? WHAT ARE COMMERCIAL TENANTS' RIGHTS? Q & A FOR COMMERCIAL LANDLORDS AND TENANTS IN THE CKL

Commercial tenancy relationships in Ontario are governed by Ontario’s Commercial Tenancies Act (the “CTA”) and the lease agreement itself.

They are largely a matter of contract, in terms of rights and obligations, rather than statutory rules.

Non-essential workplaces have been ordered closed by emergency order.

Other workplaces have been forced to discontinue operations, in whole or in part, due to the pandemic.

Governments and industry leaders are encouraging landlords to be flexible and work with their commercial tenants to find practical solutions to bridge the gap through this difficult time.

Some may not choose to do so.

WHAT CAN A COMMERCIAL LANDLORD DO?

In Ontario, if commercial rent is not paid under the terms of the lease, and subject to the terms of the lease, a commercial owner/landlord could:

(a) affirm the lease and sue for rent or for performance of an obligation (not available when rent distress is in progress) and commence an action in the Superior Court of Justice;

(b) affirm the lease and re-enter and re-let the commercial premises (only if the landlord has reserved a right of re-entry in the lease or has received a court order to the same effect);

(c) affirm the lease and exercise rent distress rights (seizure of property assets); or

(d) accept the repudiation of the lease, terminate and re-enter, and sue for the rent that would otherwise have been payable for the balance of the lease term.

WHAT LIMITATIONS ON LANDLORD’S TERMINATION AND LAWSUIT STEPS NOW APPLY DUE TO THE PANDEMIC?

Due to the pandemic, the owner’s ability to terminate, re-enter and sue for damages is currently hindered. 

Ontario has ordered that the Landlord and Tenant Board (“LTB”) may neither consider nor issue eviction orders in relation to residential tenancies and that sheriffs must postpone all scheduled eviction enforcements until further notice.

However, commercial tenancies are subject to the CTA, not governed by the LTB. Therefore, disputes about commercial tenancies are determined by the Superior Court of Justice.

The CTA provides that a commercial landlord may repossess a leased premises fifteen days after the tenant fails to both: (a) pay rent; and (b) remedy the failure in the interim. Notably, repossession by reason of the tenant’s non-payment of rent does not require judicial intervention or approval. However, it is usually recommended that such steps by a commercial landlord be sanctioned by the Court, ideally in advance. The resolution of all other disputes is in the Superior Court of Justice of Ontario (“ONSC”), rather than the LTB.

Moreover, the Superior Court currently limits operations to only urgent matters and, therefore, the ability for commercial landlords to effect lease terminations will be greatly constrained legally, practically and by reason of public policy considerations and perceptions.

Urgent matters” are defined by the Superior Court of Justice as:

  • urgent and time-sensitive motions and applications in civil matters, where immediate and significant financial repercussions may result if there is no judicial hearing; and
  • outstanding warrants issued in relation to Small Claims Court or Superior Court civil proceedings.

If a commercial landlord’s proceeding does not qualify, it is likely to be adjourned.

Even if an action could be brought in the Superior Court, enabling the landlord could obtain an order for possession of the premises, the Sheriff has been instructed not to enforce the order until further notice.

LIMITATION PERIODS ARE SUSPENDED:

By an Order in Council, under sub-section 7.1 of Ontario’s Emergency Management and Civil Protection Act, limitation and procedural time periods are suspended in Ontario for the duration of this emergency. The suspension is retroactive to March 16, 2020. Therefore, for potential claims by commercial landlords that have already arisen, but for which the limitation period has not expired, and for claims that may arise after March 16, 2020, the limitation period is suspended until further notice.  

STEPS TO TAKE IF YOU ARE A COMMERCIAL TENANT:

[1]      Review your lease:

Firstly, carefully review your lease agreement and check for:

[a] dates to meet an obligation, such as rent due date, completion of landlords’ or tenants’ work, expiry dates, damage and destruction time periods;

[b]  any clause obligating you to stay open for business, given the Ontario government issued an order to close all non-essential businesses – you may be forced to close, or the landlord may have to close its building; and

[c] any clause requiring you to comply with all laws – with orders and legislation being issued by all levels of government, you and the landlord need to be aware of the ongoing changes, respectively.

[2]      Review your lease for any “Force Majeure”/Unavoidable Delay Clause:

A “force majeure” event is an unforeseeable circumstance that prevents a person from performing an otherwise valid agreement or contract. If a person is unable to perform his or her contractual obligation due to unforeseen events, beyond his or her control, a force majeure clause may be triggered to validate the non-performance. Force majeure clauses can suspend the timeliness of obligations and are a matter of negotiation.

It is important to review your lease for timelines and deadlines that are, or will be, affected by the pandemic.

Most commercial leases contain a force majeure clause. Generally, the clause will provide that if any of the described events occur, which significantly affects a tenant’s ability to perform the lease obligations, the tenant will not be required to perform the obligation, either for as long as the event continues or permanently. However, in commercial leases, this virtually always excludes the payment of rent and the surrender date from the suspension.

Force majeure clauses are narrowly interpreted, which means the words used to identify the triggering event are narrowly construed. To be relied upon successfully, a force majeure clause must both: (a) be in the lease itself; and (b) expressly describe the event causing the inability to perform, or the delay in performance. If there is no express force majeure clause, it will not be implied into the agreement by the Court.

For an event to be considered a force majeure event, it must: (a) be unforeseen; (b) render performance of the obligation “impossible” (not merely more costly or difficult, unless cost or difficulty are expressly referenced); and (c) be the actual and direct cause of your inability to meet your obligation, as distinct from merely being incidental.

Note that many force majeure clauses require a tenant or landlord to give notice to the other and other affected parties that the “event” is, or will, result in a failure to meet one or more obligations under the agreement. For example, maintenance and repair obligations. Such notice allows the other party or parties to take steps to mitigate, if possible. There may be specific requirements for the notice in the lease agreement. A party failing to perform a contract must also consider what, if any, steps are available to mitigate the damages that may be caused due to the non-performance.

For more information from us about force majeure, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

[3]      Review your lease for Health Emergency” Clauses and Operation of Building and Control of Common Areas:

“Health emergency” clauses allow a landlord to limit or control access to the building, if required or recommended by the authorities. Similar to a force majeure clause, a health emergency clause provides that where there is a triggering event (which is typically described with a non-exhaustive list of “epidemic”, “pandemic”, “disease”, “contagion”, etc.), the landlord will have increased control over the common areas and will be permitted to create new rules and regulations regarding the operation of the building.

These clauses may permit a landlord to close the building (or parts of the building), control the individuals who are permitted to access the building and permit a landlord to draft and deliver a set of health related regulations which the tenant and its employees and invitees must follow.

These clauses may also provide for how additional services for the building are to be paid. we are seeing increased cleaning services by virtually all landlords or property managers that have responded to the pandemic. The cost of these cleaning services may already be passed on to tenants through additional rent or operating cost provisions; however, if they are not, a health emergency clause may permit the landlord to charge back these costs to the tenants.

Finally, these provisions may have a force majeure element in that, if the health emergency exists, the landlord will not be in default if it does not comply with its maintenance and repair obligations until after the health emergency.

[4]      Business Interruption (and other available) insurance:

Speak to your insurance broker about your commercial policy and the availability of business interruption (or other available) insurance coverage.

Currently most insurers are denying this coverage, but there is already a class action commenced in Ontario claiming damages for the denial against many insurers.

For more information from us about business interruption coverage, go here: http://wardlegal.ca/31585663827877

There may be other potential coverage under your tenant’s policy, such as:

1.Civil Authority Insurance - covers losses arising from a government order preventing access to the insured property. Of course, for this coverage to come into effect there must be a governmental order. Neither governmental recommendations, nor private party decisions (i.e. closing office space), will meet this threshold. However, they can be addressed in a force majeure clause; and

2.Liability Insurancecovers losses arising from “third-party” claims. In the insurance context, a “third-party” is anyone not insured under the policy and could include the landlord or the tenant. It is unclear whether any liability will arise from third-parties contracting COVID-19 from or while on an occupier’s premises. However, these policies will come into effect for defending such claims as they arise.

In addition to business interruption insurance coverage, some insurance policies may also include sufficiently broadly-worded ‘loss of attraction’ or even ‘pollution’ provisions (mostly applying only to industrial businesses), which could also potentially trigger insurance coverage and, if so, financial assistance with paying rent and utilities during the pandemic.

[5]      Consider the doctrine of frustration of contract:

If there is no force majeure clause in the lease, a party is not necessarily without a remedy for an unforeseen event that causes a party to be unable to perform its obligations under the lease.

The doctrine of frustration provides that where the occurrence of an event results in a contract becoming fundamentally different in character from what the parties originally intended, the contract may be terminated without liability. However, a higher threshold must be met for the doctrine to apply, and its application means that the contract will be terminated (and not merely suspended for the duration of the event). Frustration will only apply where the event or circumstance was unforeseeable and not the fault of either party.

In Ontario, the relevant legislation is the Frustrated Contracts Act (the “FCA”). The FCA deals with the adjustment of rights and liabilities between the parties when a contract has been frustrated.   

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CKL SMALL BUSINESSES, SOLE PROPRIETORS AND SELF-EMPLOYED - YOUR CHEAT SHEET FOR YOUR ELIGIBILITY FOR GOVERNMENT SUPPORT (THE NEW CERB, WAGE SUBSIDIES AND $40,000 LINE OF CREDIT)

Small businesses, sole proprietors and self-employed individuals in the City of Kawartha Lakes, as of April 9, 2020, help on whether you are eligible for the CERB, wage subsidies and the interest-free line of credit:

IF YOU OWN AND OPERATE A SMALL CORPORATION – AND YOU PAY YOURSELF A SALARY:

If so, and you pay yourself an annual salary through your corporation, then:

  • You do not qualify for the Canada Emergency Response Benefit (the “CERB”) ($500 weekly for up to 16 weeks) if you continue working
  • You do qualify for the CERB if you stop working for reasons related to COVID-19 and you have no income
  • You are eligible to apply for for the Cananda Emergency Wage Subsidiy (75% wage subsidy, up to $847 weekly for up to 3 months) or the alternative 10% wage subsidy (the “CEWS”)
  • You are eligible to apply for the Canada Emergency Business Account (“CEBA”) - $40,000 interest-free business loan/line of credit ($10,000 can be forgiven if $30,000 is paid off before Dec. 31, 2020)

For more information from us about qualifying for the CERB, check here: http://wardlegal.ca/31585663827879

For more information from us about qualifying for the CEBA, check here: http://wardlegal.ca/31585663827893 and here: http://wardlegal.ca/31586368607013

For more information about qualifying for the CEWS and how you calculate your wage subsidy, check here: http://wardlegal.ca/31585663827901

IF YOU ARE A SOLE PROPRIETOR (i.e., NO INCORPORATED BUSINESS) OR SELF-EMPLOYED:

  • You may be eligible for the CERB, if you continue working for less than 10 hours per week
  • You are eligible for the CERB if you stop working for reasons related to the virus
  • You are not eligible to receive the CEWS (either the 75% or 10% wage subsidy)
  • You are not eligible to receive the CEBA

IF YOU OWN AND OPERATE A SMALL CORPORATION – AND YOU PAY YOURSELF BY DIVIDENDS, NOT SALARY:

  • You are not eligible for the CERB if you continue working
  • You may be eligible for the CERB if you stop working, per the Canada Revenue Agency’s Web site update on Apr. 6, 2020
  • You are not eligible for the CEWS (both the 75% and 10% wage subsidies) or the CEBA
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BUSINESSES IN CKL - BANKS ARE ROLLING OUT THE $40,000 LINE OF CREDIT - TIPS TO APPLY AND ENROLL

The big banks are now rolling out the procedure for applying for the new Canada Emergency Business Account (the "CEBA"), being the $40,000 line of credit available to registered businesses. 

For more information about CEBA and whether you qualify, check here: http://wardlegal.ca/31585663827865

To enroll for CEBA, you will likely be required to log into your bank's online banking for business account - enrollment will be online for most of the big banks. 

If you are not registered for online banking, you should do so on your bank's online registration page.

As part of the enrollment process, you will need: :

  1. to update your email and contact details with your bank, likely using your online for business profile, before starting your enrollment; 

  2. your business client card number; 

  3. your organization’s 2019 T4 Summary of Remuneration Paid statement - you can also contact the Canada Revenue Agency to have it re-issue your organization’s 2019 statement, if necessary; and 

  4. you will need to confirm that the person enrolling for CEBA has the authority to attest on behalf of your organization and legally bind the organization to the terms of the CEBA loan agreement.

More information about the CEBA is also available here: https://www.canada.ca/en/department-finance/economic-response-plan.html

 

 

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WORKING AT HOME BECAUSE OF COVID-19? TIPS AND HELP FOR DEDUCTING YOUR WORK-AT-HOME EXPENSES TO PAY LESS TAX

If you are incurring remote working expenses during the pandemic, you may be able to claim those expenses to reduce your tax payable under the Canada Income Tax Act.

Generally, employees with remote working expenses are paid either an allowance or they are reimbursed by their employer (including an “accountable advance”).

If you are paid an “allowance” for your home office expenses, the allowance should be deductible to you generally. If not, it would be a “taxable benefit” to you and not be deductible.

If you pay for your home office expenses initially, but your employer reimburses you afterwards, those expenses should be deductible generally, too.

In either case, you may be able to “deduct” your remote working expenses during the pandemic against your taxable income and, as a result, pay less tax. 

If you receive either an allowance or a reimbursement, which the Canada Revenue Agency deems a “taxable benefit” to you, your employer could also “gross up” your benefit by paying the additional tax payable by you – this is also a taxable benefit.

If you have remote working (i.e., home office) expenses while working remotely during the pandemic, here are some tips that you should consider, including speaking to your tax advisor for assistance and advice when you file your (now deferred) personal income tax form:

REIMBURSEMENTS BY YOUR EMLOYER FOR REMOTE WORKING EXPENSES:

  • you will need to give your employer your organized receipts (information) about your remote working expenses
  • your employer can reimburse you for those that are reasonable and related to you performing your employment duties
  • if an expense is a mix of both business and personal, your employer will likely have to report your reimbursement and you will likely be taxed on and for the personal component as a taxable benefit
  • if it is difficult to allocate the expense between business and personal, the CRA expects that a reasonable position will be taken by you and your employer
  • some mixed-use expenses cannot be tracked and documented accurately by actual receipts (i.e., mobile phone usage and/or data usage, unless used solely for business and, if so, your employer is unlikely to be able to reimburse you and, if it does, it is likely this expense may be deemed a taxable benefit to you
  • if your employer reimburses you for a “capital expense”, such as a new computer, printer, other hardware, or fixing up your home to accommodate you working remotely, you will be deemed to have received a taxable benefit, taxable to you, directly, but your employer is likely able to deduct the expense in full as a business expense, unless the CRA deems it unreasonable in the circumstances  
  • using a reimbursement, rather than an allowance, is likely preferable if you have one-time or irregular remote working expenses that you experience during the pandemic

MONTHLY ALLOWANCE FOR HOME OFFICE EXPENSES:  

  • if you receive a flat-rate allowance for your home office expenses, it will likely be a taxable benefit and, therefore, will be added to your income for tax purposes
  • if, for example, you earn an annual salary of $50,000, plus a remote office allowance of $50 monthly, the allowance would be added to your income, being $50,600
  • of the $50 monthly allowance, after you pay tax on it, you put in your pocket that amount, less your marginal tax rate on that amount, a net benefit to you (i.e., your “after-tax” allowance)
  • your employer should be able to deduct your allowance in full, as a business expense, unless the amount is deemed by the CRA to be unreasonable in the circumstances

DEDUCTING YOUR REMOTE WORKING EXPENSES:

To be able to deduct any of your remote working expenses against your taxable, employment income:

[1] your employment contract must require that you pay for the expenses at issue;

[2] your employer must sign a T2200 form, certifying the conditions required for your deductibility are met; and

[3] the expenses you claim for deduction must not have been reimbursed to you by the employer.

  • you may be able to deduct some of your remote working expenses against your taxable income on a reasonable basis
  • to deduct home office expenses: [a] your home office must be in the place where you principally perform your employment duties; and [b] your home office must be used exclusively during the period for which the expense relates (to earn income);   
  • examples: office supplies (stationary, toner, ink, cartridges, postage, etc.), some use of your mobile ‘phone expense, some use of your monthly Internet usage (i.e., data usage) and at least a portion of the expenses related to your remote working space at home (such as rent, electricity, maintenance, heating, etc., for only for your designated remote working area or space)  
  • you can only deduct the amount directly related to the performance of your duties of employ (a limitation on your deductibility)
  • effectively, to be deductible, your expense must be a supply you use or consume directly for the purpose of earning your employment income (on a reasonable basis), rather than a fixed cost that is not consumed by you during and for your employ
  • example: you cannot deduct hard-cost equipment that you do not consume directly to earn your income, such as computers, peripherals, etc.
  • if you earn an annual salary, you cannot deduct the expense of your mortgage, property taxes, etc. for the home you own and remotely work within
  • if you earn commission income only, you may be able to deduct a portion of your home expenses, including property taxes, home insurance, but not your mortgage payments

Note that if you are paid an allowance for your remote working expenses, which is included in your income as a taxable benefit, you potentially could still deduct those expenses if you incurred them to perform your duties of employ, provided the conditions above are satisfied.

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YOU DON'T QUALIFY FOR EI OR CERB. YOU NEED TO PAY RENT AND BUY ESSENTIAL GOODS. APPLY TO THE EMERGENCY FINANCIAL ASSISTANCE PROGRAM. CONTACT THE CITY OF KAWARTHA LAKES.

Do you need emergency financial support, but do not qualify for any federal payments (EI, CERB)?

Need to pay rent, or buy essential goods? Unemployed? Vulnerable? Living in poverty? 

Don’t give up – you can actually apply to the City of Kawartha Lakes (or your own municipality) for emergency support.

Emergency financial support may also be available to you, if you are experiencing financial crisis due to the virus pandemic, and who are unable to access other financial support, such as the new federal Government’s CERB.

This may include those of us who are vulnerable, such as living in poverty, homeless or those who are, or who have become, unemployed related to COVID-19.

Under the provincial Emergency Assistance program, if you have been laid off, told you cannot work or you are unable to work due to COVID-19, you may be entitled to receive up to $1,170 for a 48-day period.

Families with two children could be entitled to $2,000 for a 48-day period, if eligible.

Based on recent changes, you may also be entitled to access these benefits more than one time in any six-month period. 

This emergency benefit is intended to help with paying for needs, including food, rent, medicine, and other essential items.

If you do not qualify for EI regular or sickness benefits, you cannot access the new CERB, and you have limited access to other income/assets to assist you, you can apply for these emergency benefits, too. 

You should contact the City of Kawartha Lakes about this potential benefit and information on how to apply for your benefits.

To date, it does not appear that the City has made available an online application process.  You may have to apply by ‘phone.

The Ontario government is working on and trying to roll out a more streamlined and accessible application – it should be available soon from the province, too.

For now, and although the City does not appear to have information on its Web site about this potential benefit to you, you should contact the City’s Social Services division:

Toll free: 1-877-324-9870

Tel: 705-328-2875

You can also email that division here: https://www.kawarthalakes.ca/en/living-here/social-services.aspx

You can find more information here:

https://news.ontario.ca/opo/en/2020/03/changes-to-ontarios-emergency-assistance-program-in-response-to-covid-19.html

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YOU CAN STILL MAKE YOUR OWN WILL AND POWERS OF ATTORNEY, IF NECESSARY, IF YOU CANNOT VIRTUALLY DO IT WITH YOUR QUALIFIED LAWYER - WHAT YOU NEED TO KNOW TO MAKE A "HOLOGRAPH" WILL. ALSO - THE REQUIREMENTS FOR YOUR FORMAL WILL

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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YOU CAN NOW SIGN YOUR WILL OR POWER OF ATTORNEY VIRTUALLY (REMOTELY) WITH YOUR LAWYER - NEW EMERGENCY ORDER

An emergency “Order In Council” was made on April 7, 2020, under s. 7.1 of the Emergency Management and Civil Protection Act regarding the virtual commissioning and execution of wills.

Read the emergency order here: https://www.ontario.ca/search/orders-in-council

Now, by order under s. 7.0.2(4), of Ontario’s Emergency Management and Civil Protection Act, witnessing of wills and powers of attorney may be virtual (by “audio visual” means), provided that at least one person who is providing the service as a witness is a licensee pursuant to Ontario’s the Law Society Act (i.e., a lawyer or licensed paralegal). 

“Audio visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with each other in real time. 

The Order is not retroactive and will be in place for the duration of the declaration of emergency.

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CKL BUSINESS OWNERS - EXPANDED/RELAXED QUALIFICATION FOR THE 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

For the Canada Emergency Wage Subsidy [75% wage subsidy] (the “CEWS”), today the federal government announced (subject to Parliamentary ratification):

[1]      you will have the option of using January and February of 2020 as your reference periods, rather than the original year-over-year benchmarks, under certain conditions;

[2]        you may also be permitted to use January and February, 2020, respectively, as your reference periods to calculate your decline in revenue (In addition to the original calculation periods for calculating if you meet the threshold 30% reduction in revenues), including newer businesses (i.e., start ups) that may not have the necessary historical revenue information;

[3] to claim the subsidy for March of 2020, only a reduction in revenue of 15% will be required, rather than 30%; and
[4] after March, 2020 (i.e., two additional months), the decline must still be at least 30%.

Here is more information from us about the CEWS and how you qualify and apply: http://wardlegal.ca/31585663827857

 

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MORE SUPPORT TO STUDENTS AND YOUNG CANADIANS (15 TO 30) - CHANGES TO THE CANADA SUMMER JOBS PROGRAM ANNOUNCED TODAY

Today, April 8, 2020, the federal government announced temporary changes to the Canada Summer Jobs program, intended to help employers hire summer staff and provide young Canadians access to the jobs they need during this unprecedented time.

The government declared this program upgrade will help create up to 70,000 jobs for those between the ages of 15 and 30 years of age.

The temporary changes to the program:

  • an increase to the wage subsidy, so that private and public sector employers can also receive up to 100 per cent of the provincial or territorial minimum hourly wage for each employee;
  • an extension to the end date for employment to February 28, 2021;
  • allowing employers to adapt their projects and job activities to support essential services; and
  • allowing employers to hire staff on a part-time basis.

According to the government, these changes will help youth stay connected to the labour market, save money for their future, and find quality jobs in safe, inclusive, and healthy work environments.

Other measures have previously been announced to assist young Canadians during the crisis, including: [1] a six-month, interest-free moratorium on Canada Student Loans; and [2] a 75 per cent wage subsidy for businesses that will help more employers keep part-time employees and workers over the coming months.

The Canada Summer Jobs program provides opportunities for youth to develop and improve their skills within the not-for-profit, small business, and public sectors, and supports the delivery of key community services.

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UPDATED GROCERY STORE PROTOCOL IN THE CKL - PER ALL RECOMMENDATIONS BY GOVERNMENT AND HEALTH OFFICIALS (FOR ALL ESSENTIAL SERVICES)

Line ups are increasing outside our essential services, particularly grocery stores. 

Here an updated list of grocery store protocol, per all of the recommendations made to date by the federal and provincial governments and health officials, including the Health Unit.  

  1. follow the containment measures implemented by the essential service, including the waiting outside to enter, one-way arrows, standing on the taped distance lines, etc.;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. wear your non-medical (cloth) mask, primarily to protect others from you, if you may be asymptomatic;  
  5. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  6. do not attend with your own bags or containers;
  7. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  8. adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  9. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  10. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  11. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  12. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  13. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

Altruism and comity must triumph; it is how we will overcome this crisis.

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CKL BUSINESS OWNERS - HELP AND TIPS TO GET YOUR NEW $40,000 INTEREST-FREE LINE OF CREDIT FROM YOUR BANK - WHAT YOU NEED TO KNOW

Small-and-medium-sized business owners in the City of Kawartha Lakes – an update:

THE CANADA EMERGENCY BUSINESS ACCOUNT (“CEBA”) – A $40,000 OPERATING LINE OF CREDIT:

Eligible businesses will receive a $40,000 line of credit loan for immediate financial support to cover short term operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity.

Additional information:

  • it’s a $40,000 government‑guaranteed loan to help eligible businesses pay for operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity;
  • until December 31, 2020, the CEBA will be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit will be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • beginning on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

TO QUALIFY FOR CEBA:

To enroll for CEBA through a specific bank:

  • that bank will need to be your primary financial institution; and
  • you will need a business deposit account with that bank.  

To qualify:

  • your business is a registered and operational business on or before March 1, 2020;
  • the person enrolling for the CEBA must have the ability and authority to bind the organization/business;
  • your payroll expense is between $50,000 and $1 million - to confirm this, you will be required to provide the following information:
    • your employer account number, as reported at the top of your 2019 T4 Summary of Remuneration Paid;
    • your employment income reported in Box 14 of your 2019 T4 Summary of Remuneration Paid; and
    • a copy of your 2019 T4 Summary of Remuneration Paid, if requested.
  • you will also need to agree to use funds from this loan to pay for operating costs that cannot be deferred, such as payroll, rent, utilities, insurance, debt payments and property tax.

Note:

The payroll expense above does not appear to restrict pay to the owner(s) of the business, such as wages, dividends, etc. Accordingly, it appears that not only employees, but owners, who are also employees, or who also act as employees, too, may be included to calculate the annual payroll expense. 

Note:

Sole proprietors do not qualify for CEBA. The banks will not facilitate CEBA for an individual; it is only available to business clients who have been a registered operation on or before March 1, 2020 with a business operating account.

More information for sole proprietors (individuals) and additional relief measures can be found here: https://www.canada.ca/en/department-finance/economic-response-plan.html.

ENROLLMENT FOR CEBA:

Your bank will likely require that you enroll online only.

The banks are attempting to accept online enrollments starting in the week of April 6, 2020.

Ask your bank to notify you when online enrollment is available.

You cannot enroll for the CEBA at more than one bank. Businesses must enroll for the CEBA at their primary financial institution, where they have an existing business banking account and cannot apply at more than one financial institution. Doing so may result in legal prosecution by the federal government.

PREPARING FOR YOUR ENROLLMENT:

To prepare for enrolling, you should:

  • update your email and contact information with your bank, which you could do online, if possible; and
  • find your 2019 T4 Summary of Remuneration Paid statement, which you can obtain from the Canada Revenue Agency, if necessary.  

WHEN THE LOANS WILL BE AVAILABLE TO YOU:

This remains uncertain, mostly because it depends on your bank’s ability to process your enrollment and open your revolving line of credit.

Enrollment is likely to be online only, so you should regularly check with your bank for when online application becomes available.

Your bank will contact you when your enrollment process is live. 

MULTIPLE BUSINESSES:

If you own or operate multiples businesses, each business entity may enroll for CEBA.

Each business must individually meet the eligibility criteria.

MULTIPLE OWNERS OF THE BUSINESS:

You must ensure that the person enrolling your organization has the authority to attest on behalf of the organization and bind the organization to the terms of the CEBA loan agreement.

INTEREST ON THE LOAN:

  • until December 31, 2020, the CEBA will likely be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit is likely to be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • commencing on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

WHEN TO START REPAYMENT ON THE LOAN:

You may start repaying the loan in part or in full at any time, but repayment is not required until December 31, 2025 at which time the entire loan and all accrued and unpaid interest is due.

IF YOU RECEIVE OTHER COVID-19 RELIEF:

If you are receiving other COVID-19 relief, such as the CERB, you may still apply for CEBA.

DEFERRING CREDIT CARD PAYMENTS:

Most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months. Some banks have set up new, online webforms to do so. If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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WSIB RELIEF TO EMPLOYERS - DEFERRAL OF PREMIUMS

The Workplace Safety and Insurance Board (“WSIB”) has announced that it will provide relief for employers' payments to the WSIB.

The financial relief package permits employers to defer the reporting and payment of premiums until August 31, 2020. This deferral is available to employers who report and pay monthly, quarterly or annually based on their insurable earnings.

Specifically, deferral is available for the following payments:

Monthly: March 31, April 30, May 31, June 30, July 31, Aug 31

Quarterly: April 30, July 31

Annual: April 30

This applies to Schedule 2 employers, too, which includes publicly funded organizations (municipalities, hospitals, school boards), self-funded organizations that are legislated by the province, as well as businesses who are involved in federally regulated industries. All payment obligations for Schedule 2 employers will be deferred until August 31, 2020.

There will be no accrual of interest on outstanding premium payments for Schedule 1 employers, nor will any penalties be charged during this six-month deferral period. Schedule 2 account balances will not accrue debit interest as part of the relief package. Participation in the financial relief package is not mandatory, and employers can continue to report and pay on a monthly, quarterly or annual basis.

Employers can also report now and defer payment until later.

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LIST OF ONTARIO's EMERGENCY ORDERS TO DATE EFFECTING DAY-TO-DAY LIFE FOR RESIDENTS OF THE CITY OF KAWARTHA LAKES - LIST OF THE STEEP PENALTIES FOR NON-COMPLIANCE (INCLUDING JAIL TIME)

Ontario has extended its Declaration of Emergency to April 13, 2020 – that is likely to be extended.

Social or physical distancing is not a law to date. Neither is any requirement to stay at home, although the Ontario government, and others, regularly decry this request.

ONTARIO EMERGENCY ORDERS TO DATE (APRIL 6, 2020):

Ontario has made these emergency orders that impact the day-to-day life of residents of the City of Kawartha Lakes:

Additional emergency orders have also been made, but do not directly impact residents’ day-to-day life.

A list of all of the emergency orders made by Ontario to date is available here: https://www.ontario.ca/page/emergency-information#emergencyorders

PENALTIES FOR NON-COMPLIANCE:

Non-compliance with any emergency order made by Ontario may result in significant penalties:

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

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CKL BUSINESSES AND SELF-EMPLOYED - OUR TOP 25 LIST OF FINANCIAL SUPPORT, OPTIONS AND RELIEF THAT MAY BE AVAILABLE TO HELP YOU DURING THE CRISIS

Here is a list of financial support, options and relief available to both essential and non-essential businesses and self-employed individuals, if eligible, in the City of Kawartha Lakes, as of April 6, 2020:

[1]      the Canada Emergency Wage Subsidy [75% reimbursement for ongoing wages for essential workers]

Our “Cheat Sheet” about the CEWS is available here: http://wardlegal.ca/31585663827857

[2]      if you do not qualify for the CEWS, apply for the Temporary Wage Subsidy [10%]

Our “Cheat Sheet about this alternative wage subsidy is available here: http://wardlegal.ca/31585663827857

[3]      speak to your broker about potential business interruption insurance coverage; join the contact list for the new class action in Ontario against insurers that have denied this coverage to business owners

More information from us is available here: http://wardlegal.ca/31585663827877

[4]      consider of a “Supplemental Unemployment Benefit Program” may be an option to you, topping up your employees’ EI benefits

More information from us is available here:  http://wardlegal.ca/31585663827859

[5]      the new $40,000 Line of Credit (the Canada Emergency Business Account); interest free

More information from us on this is available here: http://wardlegal.ca/31585663827865

[6]      consider “work-sharing” to reduce hours and/or avoid lay offs

More information from us about this is available here: http://wardlegal.ca/31582887996646

[7]      the new Canada Emergency Response Benefit (the “CERB”); $2,000 monthly

Our “Cheat Sheet” for the CERB is available here: http://wardlegal.ca/31585663827879

[8]      Business Development Bank funding:

The BDC has been given $10 billion from the federal government to assist small and medium-sized business with working capital and financing solutions.

More information from us about this is available here: http://wardlegal.ca/31585663827855

[9]      contact your financial institution for temporary, financial relief (mortgage and business loan deferrals, etc.):

The Bank of Canada has released an additional $300 million in capital to the primary banks, for these objectives:

  • postpone principal payments on mortgages
  • postponement of principal payments for business loans
  • access to additional working capital and loans
  • access to additional credit card limits and other principal postponements

More information from us about this is available here: http://wardlegal.ca/31585663827855

[10]    consider deferring your personal and business credit card payments temporarily

More information from us is available here: http://wardlegal.ca/31585663827867

[11]    consider deferring your corporate fax filings and tax payable, if any

More information from us about this is available here: http://wardlegal.ca/31585663827855

[12]    consider deferring your GST/HST remittances

More information from us about this is available here: http://wardlegal.ca/31585663827855

[13]    consider deferring your personal tax filing and tax payable, if any

More information from us about this is available here: http://wardlegal.ca/31585663827855

[14]    the Ontario-funded, one-time financial support payment for children and families:

They have offered a one-time payment of $200 per child up to 12 years of age, and $250 for those with special needs, including children enrolled in private schools.

They will also provide emergency child care options to support parents working on the front lines, such as health care workers, police officers, firefighters and correctional officers.

More information is available here: https://www.ontario.ca/page/get-support-families?fbclid=IwAR3AY4jo7i0bFZGES5sB58GE2bMloAh-Ta9VHYxFX2Ex28M_12KyJ-alpUE

[15]   the new electricity and energy costs:

They promise more affordable electricity bills for eligible residential, farm and small business consumers, by providing approximately $5.6 billion for electricity cost relief programs in 2020-21.  

They also promise to set electricity prices for residential, farm and small business time-of-use customers at the lowest rate, known as the off-peak price, 24 hours a day for 45 days to support ratepayers in their increased daytime electricity usage as they respond to the COVID-19 outbreak, addressing concerns about time-of-use metering.

The Ontario government represents it will provide $9 million in direct support to families for their energy bills by expanding eligibility for the Low-income Energy Assistance Program (LEAP) and ensuring that their electricity and natural gas services are not disconnected for nonpayment during the COVID-19 outbreak.

[16]  the new Employer Health Tax Exemption:

They will cut taxes by $355 million for about 57,000 employers through a proposed temporary increase to the Employer Health Tax (EHT) exemption.

  • the current exemption is $490,000
  • the 2020 exemption, retroactive to January 1, is increased to 1 million for employers with an annual payroll of less than 5 million

[17]   the new Corporate Tax Credit (Specific Regions):

They will help support communities or regions lagging in employment growth with a proposed new Corporate Income Tax Credit, the Regional Opportunities Investment Tax Credit.

[18]   consider deferring Canada Student Loan repayments for six months

More information from us about this is available here: http://wardlegal.ca/31585663827855

[19]   the reduced minimum Registered Retirement Income Fund [RRIF] withdrawals

[20]   the monthly Guaranteed Annual Income Supplement payments, if eligible, which are now doubled for the next six months

[21]   Ontario proper tax reassessment for 2020 has been deferred to 2021

[22]   Charitable and Non-Profit Organizations:

The Ontario government promises to enhance funding by $148 million for charitable and non-profit social services organizations such as food banks, homeless shelters, churches and emergency services to improve their ability to respond to COVID-19, by providing funding directly to Consolidated Municipal Service Managers and District Social Service Administration Boards who would allocate this funding based on local needs.

[23]   Tax Relief and Other Financial Incentives:

The government's plan also includes measures that will make available $10 billion in support for people and businesses through tax and other deferrals to improve their cash flows over the coming months, including:

  • making available $6 billion by providing five months of interest and penalty relief for businesses to file and make payments for the majority of provincially administered taxes;
  • over $1.8 billion by deferring the upcoming June 30 quarterly municipal remittance of education property tax to school boards by 90 days, which will provide municipalities the flexibility to, in turn, provide property tax deferrals to residents and businesses, while ensuring school boards continue to receive their funding; and
  • making available $1.9 billion by the Workplace Safety and Insurance Board (WSIB) allowing employers to defer payments for up to six months.

[24]   the BIG BANKS:

The Bank of Montreal, CIBC, National Bank of Canada, RBC Royal Bank, Scotiabank and TD Bank have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges such as:

  • pay disruption due to COVID-19; 
  • childcare disruption due to school closures; and
  • those facing illness from COVID-19

This support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products.

More information is available here: Canada's Six Biggest Banks Take Decisive Action To Help Customers Impacted by COVID-19

https://cba.ca/canada-six-biggest-banks-take-decisive-action-to-help-customers-impacted-by-covid-19

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BUSINESS OWNERS - DENIED BUSINESS INTERRUPTION INSURANCE DURING COVID-19? NEW CLASS ACTION STARTED - JOINT THE CONTACT LIST - ANSWERS TO YOUR QUESTIONS

Business interruption insurance is a hot-button issue for business owners effected by COVID-19.

Most, if not, insurance companies have denied any claims made by business owners for business interruption coverage, including those forced to close by provincial emergency order as being “non-essential” workplaces.

Now, a class action has been commenced for these denials, so far against the following insurance companies: Aviva, Co-Operators Insurance, Desjardins, Economical Insurance, Intact, Lloyd’s, Northbridge, Royal & Sun Alliance, TD General Insurance, Wawanesa Mutual Insurance and Wynward Insurance Group.

WHAT IS 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. 

WHAT SHOULD I DO?

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. 

However, remember that insurance brokers, like many others, are flooded with enquiries on all fronts. Therefore, be patient.

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. 

THE CLASS ACTION LAWSUIT:

As expected, the issue has now found its way to our Ontario Court.

A class action has been commenced.

The class action is Canada-wide, commenced on behalf of Canadian business owners and some self-employed professionals who have been denied business interruption insurance during COVID-19.

So far, the following insurance companies have been sued: Aviva, Co-Operators Insurance, Desjardins, Economical Insurance, Intact, Lloyd’s, Northbridge, Royal & Sun Alliance, TD General Insurance, Wawanesa Mutual Insurance and Wynward Insurance Group.

If you are a business owner, you can join the contact list for the “Business Interruption Insurance Class Action”. It does not impose any financial obligation on you and your information is promised to be kept confidential.

To do so, go here:  https://www.merchantlaw.com/class-actions/business-interruption-insurance-class-action/

To read more about this class action, go here: https://globalnews.ca/news/6776068/class-action-launched-insurers-covid-19/

 

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WORKING AT HOME CAN BE HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH FOR DOING IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that 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.

 

 

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WORKING AT HOME IS HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH SO YOU DO IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that 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.

 

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CANADA EMERGENCY RESPONSE BENEFIT (CERB) NOW AVAILABLE - A CHEAT SHEET - EVERYTHING YOU NEED TO KNOW TO QUALIFY AND APPLY FOR THIS FINANCIAL HELP

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 your need-to-know information:

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.

WHEN IS IT AVAILABLE

The online portal to apply for CERB is now available, as of April 6, 2020.

The Federal Government has recently indicated the benefit may be paid out within four to five days, but 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.

As of April 6, 2020, those who sign up to receive the CERB by direct deposit should receive the first CERB payment within 3-5 days of their application.

For those who choose to receive the benefit by mail, payment should be received within 10 days of their application.

You must re-apply and confirm your eligibility for the CERB every four weeks.

The maximum CERB entitlement is up to 16 weeks.

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.
  • If you have stopped working because of COVID-19, you should apply for CERB, whether or not you are eligible for EI. The Benefit is available for the period from March 15, 2020 to October 3, 2020.
  • There is now only a single portal to assist you with the application process.

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

If you are not a Canadian citizen, to be eligible for the CERB, you must reside in Canada and have a valid SIN. Employees who are not Canadian citizens or permanent residents, including temporary foreign workers and international students, may be eligible to receive the CERB if they meet the other eligibility requirements.

DO I HAVE TO BE LAID OFF FROM MY JOB TO APPLY FOR CERB?

  • no, an employee is eligible for the CERB even if they continue a relationship with the employer (i.e., you have not been laid off);
  • you must have stopped working as a result of COVID-19, and be without employment income for at least 14 consecutive days within the initial four-week period; and
  • you can also apply for the CERB if you are eligible for EI regular or sickness benefits.

DO I APPLY FOR CERB OR EI

The 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.

If you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the Canada Emergency Response Benefit.

You can still apply to EI for other benefits, including maternity, parental, caregiving, fishing and work-sharing.

WHAT IF MY CLAIM FOR IE HAS NOT YET BEEN PROCESSED?

  • do not reapply for the CERB;
  • if you became eligible for EI prior to March 15, 2020, your claim will be processed under the pre-existing EI rules; and
  • if you became eligible for EI regular or sickness benefits on or after March 15th, your claim will be automatically processed through the CERB.

WHAT IF I MAKE OTHER INCOME WHILE RECEIVING THE CERB?

To be eligible, you must have stopped working as a result of COVID-19 and be without employment income for at least 14 consecutive days within the initial four-week period (i.e., March 15 - April 11). 

The next CERB cycle begins April 11.

After that time, you must expect to have no employment income.

If you continue to receive non-employment income, such as from investments, rental income, etc., you continue to be eligible for the CERB.

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.

IF EI WILL PAY ME MORE AND I CAN GET IT, WILL I GET THE HIGHER EI AMOUNT (MORE THAN $500 WEEKLY)?

 

You will be paid the CERB amount, even if you may be eligible for more through EI regular or sickness benefits.

If you apply for the CERB, you will receive $500 per week, regardless of what you may have been eligible to receive through Employment Insurance.

If you believe you may be eligible for EI regular or sickness benefits, you retain that eligibility to receive EI after you stop receiving the CERB, and the period that you received the CERB does not impact your EI entitlement.

WHAT IF I AM A STUDENT?

Unfortunately, the CERB is only available to those who stopped work as a result of reasons related to COVID-19.

If you are seeking employ, but have not stopped working because of COVID-19, you are not eligible for the CERB.

If you are a student who had a job last year and were planning on working this summer, you do not qualify for the benefit.

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.

The $2,000 benefit will be paid in blocks of four weeks (i.e., equivalent to $500 weekly).

The CERB is currently available for a maximum 16 weeks, but that may be extended.

You will have to report the benefit as income when you file your income tax for the 2020 tax year.

WHERE AND HOW DO I APPLY FOR THE CERB?

  • if you are registered, you can apply for CERB through your MyAccount portal on the Canada Revenue Agency Web site here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-individuals/account-individuals.html;  
  • if you are not registered, applications for the CERB are open today, April 6, 2020 here: https://www.canada.ca/en/revenue-agency/services/benefits/apply-for-cerb-with-cra.html#how;
  • If you do not have online access, call the toll-free number 1-800-959-2019;
  • due to anticipated volume, the CRA requires that those with birthdays between January and March to apply on Monday; April to June on Thursdays; July to September on Wednesdays and October to December on Thursdays. 
  • anyone can apply on Fridays and weekends; and
  • the online portal will be closed from 3am to 6am everyday for site maintenance.

 

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CONSTRUCTION - WHAT MUST BE CLOSED? WHAT MAY CONTINUE? HOW DO I REPORT?

Construction work is creating some uncertainty throughout Ontario, including in the City of Kawartha Lakes. 

All construction projects and service must stop, except for: 

[1] Healthcare construction: 

Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be re-purposed for health care space; 

[2] Ontario critical infrastructure construction: 

Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy and justice sectors beyond the day-to-day maintenance; 

[3] Critical industrial construction: 

Critical industrial constructive activities required for: 

[a] the maintenance and operations of petrochemical plants and refineries; 

[b] significant industrial petrochemical projects where preliminary work has already commenced; and 

[c] industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combating the COVID-19 pandemic.

[4] Very limited residential construction: 

Specifically, all residential construction must stop, except where:

[a] a footing permit has been granted for single family, semi-detached and town homes; 

[b] an above grade structural permit has been granted for condominiums, mixed use and other buildings; or

[c] the project involves renovations to residential properties and construction work was started before April 4, 2020.

​[5] To close constructive sites or activities: 

Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety.

If you have questions about what is not permitted to be open  or impacts to your business or employment, call the Stop the Spread Business Information Line at 1-888-444-3659.

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THE CERB (EMERGENCY SUPPORT) - TEST TO QUALIFY - AMOUNT YOU GET - TAXABLE? HOW TO APPLY - MORE INFORMATION TO HELP YOU

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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YOU'RE AN ESSENTIAL WORKER? STILL WORKING? WHAT ABOUT MY PRIVACY? CAN MY EMPLOYER TAKE MY TEMP? MAKE ME GET TESTED? ASK ME IF I HAVE SYMPTOMS? ANSWERS..........

If you continue to work in an “essential workplace”, as narrowed on April 2, 2020, your employer has a statutory duty to take reasonable steps to protect your health and safety, including during this pandemic.

To do so, an employer may wish to know personal information about you, particularly related to COVID-19. Those may relate to your health, whether you have had any symptoms or if you have had any health-related assessments.

Can my employer take my temperature? Make me provide a doctor’s note that I do not have the virus? Make me do a COVID-19 assessment?

All good questions. 

While the times are entirely unprecedented, including legally, privacy law in Ontario and federally continues to apply, including for employment relationships.

So, what can employers lawfully ask? Do you have to provide the information to your employer?

Below is an excellent overview of the issue to answer all of your questions and address your concerns:

1. Can I ask employees if they have any COVID-19 symptoms?

From a privacy law perspective, asking employees if they have any COVID-19 symptoms should generally be avoided if they are not displaying any symptoms. If, however, an employer has reasonable grounds to suspect that an employee potentially has COVID-19, then asking the employee if they are exhibiting any symptoms of the illness may be reasonable and appropriate. Different rules may apply depending on the type of workplace (e.g. long-term care homes where the health and safety of others is at greater risk).

Employers may want to consider implementing a communicable illness policy that requires employees to disclose if they have, or live with someone who has, COVID-19 symptoms. Under this policy, an employee meeting that criteria should be expected to inform their employer of symptoms through a confidential process, self-isolate at home, follow the advice of the relevant public health agency on treatment and recovery, and keep the employer updated.

2. Can I ask employees to provide a medical note from their doctor?

An employer is legally entitled to request a doctor's note to justify sick leave (subject to statutory restrictions in some provinces), but because the average doctor's office is currently not equipped to test for COVID-19, a doctor's note may have little to no value at this time.

Similarly, for an employee who has already tested positive for COVID-19 or was previously symptomatic, a doctor's note could indicate if they are no longer experiencing symptoms, but not whether they are free of COVID-19. The doctor's opinion would also be based on limited information since individuals who have or recently had symptoms of COVID-19 are being advised not to attend their doctor's office, meaning that it is likely the employee would not have been physically examined.

3. Can I ask employees to get tested before reporting to work?

Employers generally cannot force employees to undergo testing, and COVID-19 testing is not available on demand. Different rules may apply for certain employers in the healthcare sector.

If an employer has reasonable grounds to suspect an employee potentially has COVID-19, the employer may ask the employee to leave work and request that the employee contact the relevant public health agency and follow their directions on whether testing is appropriate.

4. Can I take employees' temperatures (for purposes of determining if they have a fever) before allowing them to attend work?

Taking employees' temperatures may potentially be a breach of the privacy rights and dignity rights of workers under applicable human rights and privacy legislation.

However, occupational health and safety (OHS) laws are important public welfare legislation. In some cases, the OHS laws may have a superseding provision that allows protecting the lives, health, and safety of both workers and members of the public to prevail over the competing values of privacy rights and dignity rights of employees.

Taking employees' temperatures may also be permitted if there is a bona fide reason, such as a demonstrated outbreak of COVID-19 in the workplace or in the community immediately surrounding the workplace, or depending on the nature of the industry (for example - food production).

Legal advice should be sought regarding whether and how best to proceed with temperature screening. Notice should be given and the tests should be done in accordance with an established protocol in order to minimize the intrusion on employees' privacy rights as much as possible.

Credit:

Lorene A. Novakowski and Kristin Woo, Fasken, Apr. 3, 2020 - https://www.fasken.com/en/knowledge/2020/04/3-covid-19-employee-privacy-issues

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HOW MUCH REGULAR EI WILL I GET?- CAN I STILL WORK ON EI? YES, YOU CAN. HERE'S HOW IT WORKS, WITH EXAMPLES

You can work while you receive EI regular benefits, if your employer offers you work.

Here’s what you need to know:

  • you have to initially serve your one-week waiting period (for EI regular benefits only);  
  • your regular benefit will be reduced by 50 cents for every dollar of income you earn, up to your “earnings threshold”;
  • your “earnings threshold” is 90% of your regular earnings while you were employed; and
  • if you earn income beyond your “earnings threshold”, your regular benefit will be reduced dollar-for-dollar;

Here is an example:

You regularly earn $500 weekly during your employ of 40 hours weekly, which is $100 daily, gross. This is your “insurable earnings” for EI purposes.

EI’s rate for regular benefits is 55%.

So, you would be eligible to receive $275 weekly. If you earned $1,000 weekly, your benefit would be $550 weekly, and so on.

Your “earnings threshold” (i.e., 90% of your regular wage) would be $450.

Now, suppose that work an additional 8 hours weekly and, therefore, you earn an additional $100.

If so, per the one-half rule, $50 will be deducted from your regular EI benefit, leaving you with $225 from EI (plus the additional $100, directly from your employer), for a total of $325.

By working more, you can earn up to $450 weekly, or your “earnings threshold”.

You cannot earn more than your “earnings threshold” by working during your receipt of EI benefits, or your benefits will end.

Here is another example:

You work 40 hours weekly and earn $1,000, gross, in regular wages.

So, you earn $200 per day and would be eligible for EI regular benefits of $550 weekly.

Your “earnings threshold” would be $900 weekly (i.e., 90% of your regular wages).

If you work an additional 16 hours weekly, earning you an additional $400, your EI benefit will be reduced to $350, after deducting one-half of your additional $400 earnings.

In total, you earned $750 by working the additional hours ($400 additional earnings, directly from your employer, pus your $350 EI regular benefit).

You have not surpassed your “earnings threshold”, either.

 

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LOCAL BUSINESS OWNERS - YOUR CHEAT SHEET FOR THE NEW $40,000 LINE OF CREDIT (CEBA) - WHAT YOU NEED TO KNOW

Small-and-medium-sized business owners in the City of Kawartha Lakes – an update:

THE CANADA EMERGENCY BUSINESS ACCOUNT (“CEBA”) – A $40,000 OPERATING LINE OF CREDIT:

Eligible businesses will receive a $40,000 line of credit loan for immediate financial support to cover short term operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity.

Additional information:

  • it’s a $40,000 government‑guaranteed loan to help eligible businesses pay for operating expenses, payroll and other non-deferrable expenses which are critical to sustain business continuity;
  • until December 31, 2020, the CEBA will be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit will be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • beginning on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

TO QUALIFY FOR CEBA:

To enroll for CEBA through a specific bank:

  • that bank will need to be your primary financial institution; and
  • you will need a business deposit account with that bank.  

To qualify:

  • your business is a registered and operational business on or before March 1, 2020;
  • the person enrolling for the CEBA must have the ability and authority to bind the organization/business;
  • your payroll expense is between $50,000 and $1 million - to confirm this, you will be required to provide the following information:
    • your employer account number, as reported at the top of your 2019 T4 Summary of Remuneration Paid;
    • your employment income reported in Box 14 of your 2019 T4 Summary of Remuneration Paid; and
    • a copy of your 2019 T4 Summary of Remuneration Paid, if requested.
  • you will also need to agree to use funds from this loan to pay for operating costs that cannot be deferred, such as payroll, rent, utilities, insurance, debt payments and property tax.

Note:

The payroll expense above does not appear to restrict pay to the owner(s) of the business, such as wages, dividends, etc. Accordingly, it appears that not only employees, but owners, who are also employees, or who also act as employees, too, may be included to calculate the annual payroll expense. 

Note:

Sole proprietors do not qualify for CEBA. The banks will not facilitate CEBA for an individual; it is only available to business clients who have been a registered operation on or before March 1, 2020 with a business operating account.

More information for sole proprietors (individuals) and additional relief measures can be found here: https://www.canada.ca/en/department-finance/economic-response-plan.html.

ENROLLMENT FOR CEBA:

Your bank will likely require that you enroll online only.

The banks are attempting to accept online enrollments starting in the week of April 6, 2020.

Ask your bank to notify you when online enrollment is available.

You cannot enroll for the CEBA at more than one bank. Businesses must enroll for the CEBA at their primary financial institution, where they have an existing business banking account and cannot apply at more than one financial institution. Doing so may result in legal prosecution by the federal government.

PREPARING FOR YOUR ENROLLMENT:

To prepare for enrolling, you should:

  • update your email and contact information with your bank, which you could do online, if possible; and
  • find your 2019 T4 Summary of Remuneration Paid statement, which you can obtain from the Canada Revenue Agency, if necessary.  

WHEN THE LOANS WILL BE AVAILABLE TO YOU:

This remains uncertain, mostly because it depends on your bank’s ability to process your enrollment and open your revolving line of credit.

Enrollment is likely to be online only, so you should regularly check with your bank for when online application becomes available.

Your bank will contact you when your enrollment process is live. 

MULTIPLE BUSINESSES:

If you own or operate multiples businesses, each business entity may enroll for CEBA.

Each business must individually meet the eligibility criteria.

MULTIPLE OWNERS OF THE BUSINESS:

You must ensure that the person enrolling your organization has the authority to attest on behalf of the organization and bind the organization to the terms of the CEBA loan agreement.

INTEREST ON THE LOAN:

  • until December 31, 2020, the CEBA will likely be funded as a revolving line of credit for $40,000;
  • after December 31, 2020, any outstanding balance on the revolving $40,000 line of credit is likely to be converted into a non-revolving 5‑year term loan maturing on December 31, 2025, at which time the balance must be paid in full;
  • no interest applies until January 1, 2023;
  • commencing on January 1, 2023, interest accrues on the balance of the term loan at the rate of 5% per annum, payable monthly on the last day of each month;
  • if you pay 75% of the balance of the term loan (as at January 1, 2021), on or before December 31, 2022, the remaining balance of your term loan will be forgiven. For example, if your balance is $40,000 on January 1, 2021 and you repay $30,000 on or before December 31, 2022, the remaining $10,000 will be forgiven; and
  • if you do not repay 75% of the balance of the term loan (as at January 1, 2021) on or before December 31, 2022, the full loan balance and all accrued and unpaid interest will be due and payable on December 31, 2025.

WHEN TO START REPAYMENT ON THE LOAN:

You may start repaying the loan in part or in full at any time, but repayment is not required until December 31, 2025 at which time the entire loan and all accrued and unpaid interest is due.

IF YOU RECEIVE OTHER COVID-19 RELIEF:

If you are receiving other COVID-19 relief, such as the CERB, you may still apply for CEBA.

DEFERRING CREDIT CARD PAYMENTS:

Most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months. Some banks have set up new, online webforms to do so. If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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COVID-19 - DEFERRING YOUR PERSONAL AND BUSINESS CREDIT CARD PAYMENTS - YES, TEMPORARILY AND WITHOUT PENALTY

As part of the federal Government's COVID-19 economic response plan, it has strongly encouraged the Big Banks to allow consumers to defer credit card payments, without penalty, at least temporarily. 

Currently, most of the banks, if not all, are accepting requests to temporarily waive the requirement that you pay your minimum payment on your credit card for up to two months.

Some banks have set up new, online webforms to do so.

If you need relief beyond the two-month period, you should contact your bank advisor for additional deferrals up to a total of six months.

However, requests are not guaranteed.

Deferred payments will not be reported to credit bureaus as missed payments.

During the deferral period, you will continue to accrue interest charges at your current annual interest rates and we will add those charges to your outstanding balance.

This may increase the outstanding balance on your credit card at the end of the deferral period.

Most banks, if not all, will not charge interest on accrued interest.

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CLARITY TO LOCAL BUSINESSES - WHETHER ESSENTIAL - WHAT YOU CAN/CANNOT DO - STEEP PENALTIES FOR NON-COMPLIANCE

As of March 24, all “non-essential” businesses must be closed [Regulation 82/20 of the Emergency Management and Civil Protection Act (the “Regulation”)].

The Regulation also permits “non-essential” businesses to allow temporary access for very specific purposes, which are explained below.

Essential businesses are:

  • supply chain
  • retail and wholesale of food
  • food services and accommodations
  • institutional, residential, commercial and industrial maintenance
  • telecommunications and IT infrastructure service providers
  • transportation
  • manufacturing and production
  • agriculture and food production
  • construction
  • financial activities
  • resources
  • environmental services
  • utilities and community services
  • communications
  • research
  • health care and social services
  • justice
  • business regulators and inspectors
  • other specific business activities.

For non-essential businesses, temporary access is permitted only:

  • to perform work at the business in order to comply with any applicable law
  • to allow for inspection, maintenance or repair
  • to allow for the provision of security services
  • to deal with critical matters related to the closure of the business
  • to access materials needed for the business to operate remotely.

Non-essential businesses may also operate remotely or provide services online or by telephone.

PENALTIES FOR NON-COMPLIANCE:

Non-compliance with the Regulation may result in significant penalties:

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

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UPDATE TO SEPARATED AND DIVORCED CO-PARENTS - THE TEST YOU NEED TO MEET TO CHANGE THE EXISTING PARENTING ARRANGEMENTS DURING THE PANDEMIC - GENERAL CONCERN IS NOT ENOUGH

If any co-parent seeks to change the existing parenting arrangements arising from, or related to, COVID-19, the following test will be applied by the Family Court before the request will be considered:
[1] firstly, the co-parent must prove specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols;
[2] the co-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.
[3] 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; and
[4] Family Court 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.
General concern about exposure is insufficient.
This is a very good time for both custodial and access parents to spend time with their child at home - this is strongly recommended by the Family Court during this turbulent times.
No co-parent should attempt to take any tactical parenting advantage over the other co-parent related to the pandemic. The Family Court will be loathe to sanction any such conduct.
Guerin v. Guerin, March 31, 2020, FC-20-576
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COVID-19 - LAID OFF? COLLECTING EI? CAN YOUR EMPLOYER 'TOP UP' YOUR WAGES WITHOUT REDUCING YOUR BENEFITS? YES - USE A "SUB" PLAN

Employers – if you have had to temporarily laid off any employees due to the pandemic, you may have the option of temporarily ‘topping up’ their earnings during the lay offs, above and beyond their Employment Insurance (“IE”) benefits.

You can do so by using a “Supplemental Unemployment Benefit Program” (a “SUB plan”).

You can enter an agreement with the federal Government to have a SUB plan.

Wage payments  made under a SUB plan are not earnings and, therefore, these payments will not be deducted from an employee’s EI benefits.

To use this option, employers must register the SUB plan with Service Canada before it can be implemented. When a plan is submitted to Service Canada, the officer will review and ensure it complies with the necessary requirements. If needed, officers can help employers develop and revise plans to meet the requirements.

Here are the basic requirements:

  • identifying which employees the SUB plan will cover by group or position (not by name);
  • including a start and end date for the SUB plan;
  • covering any period of unemployment because of temporary work stoppage, illness, injury, or quarantine;
  • requiring employees to apply for and receive benefits;
    • if an employee is not receiving benefits, they may still be eligible in certain circumstances.
  • confirming that the combined amount received from the plan and the employee’s weekly EI benefits is not more than 95 percent of the employee’s normal weekly earnings;
  • outlining the method used by the employer to finance the SUB payments, and confirming that payments are financed exclusively by the employer;
  • requiring any changes to be made in writing and submitted to Service Canada within 30 days of the change;
  • explaining that the employees have no vested rights to these payments other than during the applicable period;
  • providing that payments for other guaranteed annual renumerations, deferred renumerations or severance benefits are not affected by these payments;
  • your SUB plan must be approved by the government before it is implemented.

There may be other options and advantages for your SUB plan, too.

For example, employers may be able to require that employees return to work for a specified period after these supplemental employment benefits are paid.

Approval from the Service Canada SUB Program must be received before it is implemented.

More information is available here:

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

 

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THE TWELVE RULES TO FOLLOW IF YOU MUST LEAVE YOUR HOME – WHEN BUYING ESSENTIAL GOODS – GAS; GROCERY SHOPPING; PHARMACY – CIVILITY AND RESPECT MUST PREVAIL – CONTAINMENT IS CRITICAL

If you must leave your home, despite the strong recommendations by our governments and health officials to do your best not to, nothing has changed in terms of how we interact with each other in our community. Respect and civility are essential, as has always been the case. The virus does not change that.

When you must leave, if so, such as to buy essential goods only, please adhere to these twelve, simple rules:

  1. follow the containment measures implemented by the essential service, including standing on the taped distance lines;
  2. always engage in the ‘hockey stick’ rule (i.e., physical distancing of two metres; six feet), including with essential workers;
  3. only one family member should attend the essential service, not more;
  4. only buy groceries, get gas, get your drugs, etc. no more than one per week; no social browsing or shopping – if possible, limit it to once bi-weekly;
  5. do not attend with your own bags or containers;
  6. minimize any chit-chat and social interaction with any other customers or essential service workers; no gathering; no idle talking;
  7. strictly adhere to all COVID-19 containment measures, including coughing, if necessary, into your elbow, washing your hands thoroughly immediately before and after you attend the essential service;
  8. minimize your time in the essential service – prepare and take a list in advance; no browsing;
  9. importantly, do not vent to the essential workers – they are endangering themselves to help you; none should be exposed to ridicule, criticism, complaints or general frustration;
  10. thank every essential worker you see, if possible – just a quick, “Thank you for everything” – no need to engage in a discussion;
  11. if possible, consider providing a tip to an essential worker and, if so: a) strictly physically distance; and b) provide the cash tip in an envelope and lay it at the counter only; and
  12. be civil, respectful, polite, courteous and cordial to everyone, particularly the essential workers, as you would at any time before the onset of this pandemic.

Altruism and comity must triumph; it is how we will overcome this crisis.

 

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UPDATE - NEW WAGE SUBSIDY - AVOID LAY OFFS - YOUR CHEAT SHEET TO KEEPING EMPLOYEES ON PAYROLL - GOVERNMENT WILL PAY 75% OF WAGES - AS OF MAR. 2, 2020

More details about the federal government's new wage subsidy, intended to encourage employers to avoid lay offs and keep employees on the payroll: 

NEW 75% CANADA EMERGENCY WAGE SUBSIDY – ALL EMPLOYERS [REFUND]:

  • all employees are eligible, except public sector;
  • 75 per cent wage subsidy on the first $58,700 normally earned by employees [a benefit of up to $847 per week];  
  • will be available a 12-week period, from March 15 to June 6, 2020;
  • government will refund the wage subsidy; not an adjustment to income tax source deductions, etc.
  • employer must show a drop in gross revenues of at least 30 per cent in March, April or May, compared to the same month in 2019;
  • non-profit organizations and registered charities affected by a loss of revenue, the government will continue to work with the sector to ensure the definition of revenue is appropriate to their circumstances;  
  • government is also considering additional support for non-profits and charities, particularly those involved in the front line response to COVID-19 - further details to follow;
  • an eligible employer’s entitlement to this wage subsidy will be based entirely on the salary or wages actually paid to employees;  
  • all employers would be expected to at least make best efforts to top up salaries to 100% of the maximum wages covered;
  • eligible will be able to access the subsidy by applying through a Canada Revenue Agency online portal, which should be available within three to six weeks;
  • does not replace the previously announced 10% wage subsidy for eligible employers;  
  • employers eligible for both subsidies for a period, any benefit from the 10% wage subsidy an employer receives is expected to reduce the amount available to that employer from the Canada Emergency Wage Subsidy;
  • more information here: https://www.canada.ca/en/department-finance/news/2020/04/government-announces-details-of-the-canada-emergency-wage-subsidy-to-help-businesses-keep-canadians-in-their-jobs.html

EXISTING 10% WAGE SUBSIDY [CREDIT; REDUCTION IN TAX PAYABLE]:

  • small-and-medium business that do not suffer revenue reductions;
  • still available for employers that do not qualify for the 75% subsidy;
  • 10% wage subsidy for the period March 18 to before June 20;
  • maximum subsidy of $1,375 per employee and $25,000 per employer;
  • when the subsidy is calculated, reduce the current payroll remittance of income tax (but not EI nor CPP);
  • employees’ pay and deductions remain unchanged; and
  • more information here: https://www.canada.ca/en/revenue-agency/campaigns/covid-19-update/frequently-asked-questions-wage-subsidy-small-businesses.html#h1

NOTE:

Employees will not be able to receive both the Canada Emergency Wage Subsidy and the Canada Emergency Response Benefit (CERB). 

You can apply for the CERB as of April 6.

NEW ONTARIO HELP FOR BUSINESSES TO SUPPLY PPE AND MEDICAL EQUIPMENT:

On April 1, 2020, the Ontario government announced the launch of a $50-million fund named the Ontario Together Fund.  

The purpose of the fund is to “help businesses provide innovative solutions or retool their operations in order to manufacture essential medical supplies and equipment, including gowns, coveralls, masks, face shields, testing equipment and ventilators.” 

The fund will be available to companies and organizations across the province. 

Businesses may submit proposals to the government through the Ontario Together portal.

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SELF-EMPLOYED/BUSINESS OWNERS/NOT-FOR-PROFITS - WHAT IS BEING DONE RIGHT NOW TO HEP ME/US BY BOTH THE FEDERAL AND PROVINCIAL GOVERNMENTS AND THE BIG BANKS? YOUR ANSWERS, AS OF APR. 1, 2020

As of April 1, 2020, here is a summary of the financial and other assistance being offered to self-employed individuals and small-to-medium-size businesses in Ontario, including non-profit and charitable organizations:

THE FEDERAL GOVERNMENT:

Income Tax:

Businesses can defer payments, until after August 31, 2020, on any income tax amounts that become owing on or after March 18, 2020 and before September 2020. No interest or penalties will accumulate during this period. Nothing further needs to be done by businesses to access this relief.

The CRA has also indicated that it will not initiate any post assessment GST/HST or Income Tax audits in the next four weeks. 

Business Credit Availability Program:

The Business Credit Availability Program includes: [1] Canada Emergency Business Account; [2] Loan Guarantee for Small and Medium-Sized Enterprises; [3] Co-Lending Program for Small and Medium-Sized Enterprises. These three programs are expected to roll out April 20, 2020.

Additional capital is promised and soon-to-be-available to support businesses experiencing cash flow interruptions through the Business Development Bank of Canada (BDC) and Export Development Canada (EDC).

Businesses must contact their financial institution for an assessment of their situation, which will refer the business either to BDC or EDC if their financial need is greater than what can be offered in the private sector.

It is anticipated that BDC will evaluate each business on a case by case basis, and loans will only be approved for businesses that were financially viable except for the cash flow interruption caused by COVID-19.

The Canada Emergency Business Account will also provide interest-free loans of up to $40,000 to small business and not-for-profits.

To qualify, the organization must have paid between $50,000 to $1 million in total payroll in 2019.

Loan Guarantee for Small and Medium-Sized Enterprises and Co-Lending Program for Small and Medium-Sized Enterprises will also offer loans of up to $6.25 million.

Canada Emergency Response Benefit (“CERB”):

Self-employed individuals and others who would not otherwise be eligible for Employment Insurance (“EI”) would be covered by CERB. CERB will provide a taxable benefit of $2,000 a month for up to four months, and the portal to apply for the benefit will be available in early April.

CERB will also apply to any employees who are not receiving income because of disruptions to work.

You can more information from us about CERB here: http://wardlegal.ca/31585663827847.

Expanded Wage Subsidy:  

On March 28, the federal Government announced changes this program, including a 75 per cent wage subsidy, for up to three months, retroactive to March 15, 2020.

This wage subsidy is available to all companies, non-profits organizations that experience a drop of at least 30 per cent of its revenue.

The cap for the subsidy is 75 percent of $57,800, which is up to $847 each week.

There is no cap on the size of the company nor the number of employees.

You can more information from us about this wage subsidy here: http://wardlegal.ca/31585663827845.

GST/HST Deferment:

GST and HST payments, and duties and taxes on imports, will be deferred until June.

Work-Sharing Program:

Work-Sharing is an existing adjustment program designed to avoid layoffs when there is a temporary reduction in normal business activity for specific industries.

This is a three-party agreement between employers, employees and Service Canada, where an agreement is reached to reduce scheduled work and to share the available work.

Under the program, the maximum duration of Work-Sharing agreements is now 76 weeks.

You can find more information from us about working-sharing here: http://wardlegal.ca/31582887996646

THE ONTARIO GOVERNMENT:

Child-Related Assistance:

They have offered a one-time payment of $200 per child up to 12 years of age, and $250 for those with special needs, including children enrolled in private schools.

They will also provide emergency child care options to support parents working on the front lines, such as health care workers, police officers, firefighters and correctional officers.

Electricity and Energy Costs:

They promise more affordable electricity bills for eligible residential, farm and small business consumers, by providing approximately $5.6 billion for electricity cost relief programs in 2020-21.  

They also promise to set electricity prices for residential, farm and small business time-of-use customers at the lowest rate, known as the off-peak price, 24 hours a day for 45 days to support ratepayers in their increased daytime electricity usage as they respond to the COVID-19 outbreak, addressing concerns about time-of-use metering.

The Ontario government represents it will provide $9 million in direct support to families for their energy bills by expanding eligibility for the Low-income Energy Assistance Program (LEAP) and ensuring that their electricity and natural gas services are not disconnected for nonpayment during the COVID-19 outbreak.

Employer Health Tax Exemption:

They will cut taxes by $355 million for about 57,000 employers through a proposed temporary increase to the Employer Health Tax (EHT) exemption.

Corporate Tax Credit (Specific Regions):

They will help support communities or regions lagging in employment growth with a proposed new Corporate Income Tax Credit, the Regional Opportunities Investment Tax Credit.

Charitable and Non-Profit Organizations:

The Ontario government promises to enhance funding by $148 million for charitable and non-profit social services organizations such as food banks, homeless shelters, churches and emergency services to improve their ability to respond to COVID-19, by providing funding directly to Consolidated Municipal Service Managers and District Social Service Administration Boards who would allocate this funding based on local needs.

Tax Relief and Other Financial Incentives:

The government's plan also includes measures that will make available $10 billion in support for people and businesses through tax and other deferrals to improve their cash flows over the coming months, including:

  • making available $6 billion by providing five months of interest and penalty relief for businesses to file and make payments for the majority of provincially administered taxes;

  • over $1.8 billion by deferring the upcoming June 30 quarterly municipal remittance of education property tax to school boards by 90 days, which will provide municipalities the flexibility to, in turn, provide property tax deferrals to residents and businesses, while ensuring school boards continue to receive their funding; and

  • making available $1.9 billion by the Workplace Safety and Insurance Board (WSIB) allowing employers to defer payments for up to six months.

THE BIG BANKS:

The Bank of Montreal, CIBC, National Bank of Canada, RBC Royal Bank, Scotiabank and TD Bank have made a commitment to work with personal and small business banking customers on a case-by-case basis to provide flexible solutions to help them manage through challenges such as:

  • pay disruption due to COVID-19; 

  • childcare disruption due to school closures; and

  • those facing illness from COVID-19

This support will include up to a six-month payment deferral for mortgages, and the opportunity for relief on other credit products.

More information is available here: Canada's Six Biggest Banks Take Decisive Action To Help Customers Impacted by COVID-19

https://cba.ca/canada-six-biggest-banks-take-decisive-action-to-help-customers-impacted-by-covid-19

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NEED EMERGENCY FINANCIAL SUPPORT TO PAY RENT, BUY ESSENTIAL GOODS? UNEMPLOYED? DO NOT QUALIFY FOR EI OR CERB? DON'T GIVE UP - CONTACT YOUR MUNICIPALITY TO APPLY FOR SUPPORT

Do you need emergency financial support, but do not qualify for any federal payments (EI, CERB)?

Need to pay rent, or buy essential goods? Unemployed? Vulnerable? Living in poverty? 

Don’t give up – you can actually apply to the City of Kawartha Lakes (or your own municipality) for emergency support.

Emergency financial support may also be available to you, if you are experiencing financial crisis due to the virus pandemic, and who are unable to access other financial support, such as the new federal Government’s CERB.

This may include those of us who are vulnerable, such as living in poverty, homeless or those who are, or who have become, unemployed related to COVID-19.

Under the provincial Emergency Assistance program, if you have been laid off, told you cannot work or you are unable to work due to COVID-19, you may be entitled to receive up to $1,170 for a 48-day period.

Families with two children could be entitled to $2,000 for a 48-day period, if eligible.

Based on recent changes, you may also be entitled to access these benefits more than one time in any six-month period. 

This emergency benefit is intended to help with paying for needs, including food, rent, medicine, and other essential items.

If you do not qualify for EI regular or sickness benefits, you cannot access the new CERB, and you have limited access to other income/assets to assist you, you can apply for these emergency benefits, too. 

You should contact the City of Kawartha Lakes about this potential benefit and information on how to apply for your benefits.

To date, it does not appear that the City has made available an online application process.  You may have to apply by ‘phone.

The Ontario government is working on and trying to roll out a more streamlined and accessible application – it should be available soon from the province, too.

For now, and although the City does not appear to have information on its Web site about this potential benefit to you, you should contact the City’s Social Services division:

Toll free: 1-877-324-9870

Tel: 705-328-2875

You can also email that division here: https://www.kawarthalakes.ca/en/living-here/social-services.aspx

You can find more information here:

https://news.ontario.ca/opo/en/2020/03/changes-to-ontarios-emergency-assistance-program-in-response-to-covid-19.html

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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 - 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 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: 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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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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